Stamford Hospital v. Schwartz

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STAMFORD HOSPITAL v. CHAIM
SCHWARTZ ET AL.
(AC 40870)
Lavine, Prescott and Elgo, Js.
Syllabus
The plaintiff hospital brought an action, pursuant to statute (§ 46b-37 [b]),
against the defendants, seeking to collect a debt for medical services
that it had rendered to their minor child. The defendants each filed
an amended answer denying the material allegations of the plaintiff’s
complaint, including that they were the child’s parents, and pleaded
fourteen special defenses, including accord and satisfaction. The matter
was referred for trial to an attorney trial referee, who recommended
judgment in favor of the plaintiff. In his memorandum of decision,
the referee made extensive findings of fact, on the basis of which he
concluded that the plaintiff had established that, under § 46b-37 (b),
there was no legitimate basis for the defendants’ failure to pay the
moneys that they owed to the plaintiff for the medical services rendered
to the child and that he was strained to accept any testimony from the
defendants as truthful. With respect to the defendants’ special defenses,
the referee found them to be disingenuous and that the defendants had
failed to establish the requirements of accord and satisfaction under the
applicable statute (§ 42a-3-311). After the defendants filed an objection
to the referee’s memorandum of decision, the trial court held a hearing
and, thereafter, rendered judgment in favor of the plaintiff. Subsequently,
the plaintiff filed motions for a special finding of bad faith and for
attorney’s fees. In response, the court issued an order stating that it
had found bad faith as a matter of law in its ruling regarding the special
defense of accord and satisfaction and remanded the case to the referee
for a finding of whether any other acts of the defendants were made
in bad faith. The referee subsequently filed a supplemental memorandum
of decision in which he found that all of the defendants’ special defenses
were pleaded and pursued in bad faith and that the defendants had used
the judicial system as a means to avoid or delay paying their financial
obligation to the plaintiff. After the defendants filed an objection to
the referee’s supplemental memorandum of decision, the trial court
concluded with respect to the plaintiff’s motion for a special finding of
bad faith that the defendants’ lack of credibility permeated the entire
proceeding and that they acted in bad faith as to their special defenses.
The court then granted the plaintiff’s motion for attorney’s fees on the
basis of its finding of bad faith and awarded the plaintiff the full amount
that it had requested. On the defendants’ appeal to this court, held that
the defendants could not prevail on any of their twenty-three claims on
appeal, as none of those claims was meritorious, the record supported
the findings of the referee and the trial court that the defendants acted
in bad faith, and the trial court’s decision to award the plaintiff attorney’s
fees was legally and logically correct: most of the defendants’ claims
were not reviewable because the record was inadequate for review, or
the claim was not preserved or adequately briefed or was inappropriate,
as this court does not, sua sponte, look for reasons to reverse the
judgment of the trial court, the record supported the findings of the
referee and the trial court that the defendants are indebted to the plaintiff
and that they exhibited bad faith throughout the litigation, and this was
the rare case in which the arguments put forth were so preposterous,
audacious and transparent, and the attempt to avoid payment so obvious,
that a finding of bad faith was compelled; moreover, the referee acted
well within his authority to find by a preponderance of the evidence
that the defendants were untruthful, as credibility determinations are
to be made by the finder of fact, who may accept all, some, or none of
the testimony of a witness, and the defendants having testified that
they were uncertain of the child’s parentage despite the overwhelming
contrary circumstantial evidence, their behavior in predicating their
defense on such a denial was deeply offensive to the norms of civil
society.
Argued February 4—officially released May 21, 2019
Procedural History
Action to collect a debt, and for other relief, brought
to the Superior Court in the judicial district of Stamford-
Norwalk, where the matter was referred to an attorney
trial referee, who filed a finding of facts and recom-
mended judgment for the plaintiff; thereafter, the trial
court, A. William Mottolese, judge trial referee, ren-
dered judgment for the plaintiff; subsequently, the attor-
ney trial referee filed a supplemental memorandum of
decision; thereafter, the court granted the plaintiff’s
motions for a special finding of bad faith and for attor-
ney’s fees and awarded the plaintiff attorney’s fees, and
the defendants appealed to this court. Affirmed.
Chaim T. Schwartz, self-represented, with whom,
on the brief, was Rena E. Gelb, self-represented, the
appellants (defendants).
Vimala Ruszkowski, with whom, on the brief, were
Eric J. Stockman and Simon I. Allentuch, for the appel-
lee (plaintiff).
Opinion
LAVINE, J. This appeal arises from the defendant
parents’ refusal to pay for medical care and treatment
rendered to their minor child by the plaintiff hospital
and the transparently disingenuous machinations they
employed in an effort to avoid liability for the debt. We
affirm the judgment of the trial court.
The self-represented defendants, Chaim Schwartz
and Rena Gelb,1 appeal from the judgment of the trial
court rendered in favor of the plaintiff, Stamford Hospi-
tal. On appeal, the defendants have raised twenty-three
claims challenging the underlying factual findings of
the attorney trial referee (referee)2 and the legal conclu-
sions of the trial court. In response, the plaintiff argues
that there are only two issues relevant to the appeal:
were the defendants indebted to the plaintiff and did
they exhibit bad faith in defense of the action. We agree
with the plaintiff that the judgment should be affirmed.
The following facts, as found by the referee, the
court’s legal conclusions, and the procedural history
are relevant to our resolution of the defendants’ appeal.
The plaintiff commenced the present action against the
defendants on January 21, 2015. In count one of its two
count complaint, the plaintiff alleged that, at the request
of the defendants, it provided medical services to their
minor child from March 5 to March 6, 2013. The child
resided in the defendants’ home, and, therefore, pursu-
ant to General Statutes § 46b-37 (b),3 the defendants
are liable for the cost of the medical services rendered
by the plaintiff. The plaintiff billed the defendants for
the services it provided to the child, the reasonable
value of which was $14,051.99. Despite having made
demand on the defendants for payment, a balance of
$8076.25 remained due and owing, which the defen-
dants have refused to pay.4 In count two, the plaintiff
realleged the allegations of count one and that Gelb
had signed a patient authorization and agreement
(authorization) in which she agreed to pay the plaintiff
for the services it rendered to the child plus the costs
of collection, including attorney’s fees. Despite having
made demand on Gelb, she refused to pay the balance
of $8076.25. In its prayer for relief, the plaintiff sought
money damages, reasonable attorney’s fees and costs,
and statutory prejudgment and postjudgment interest.
On May 12, 2015, the defendants filed amended answers
denying the material allegations of the complaint,
including that the defendants were the child’s parents,
and each pleaded fourteen identical special defenses,
including accord and satisfaction.
The parties tried the case to the referee pursuant to
General Statutes § 52-5495 and Practice Book § 23-53.6
The referee issued a memorandum of decision on Octo-
ber 5, 2016, in which he found the following facts. On
March 5, 2014, Gelb took the child to the hospital with
symptoms of a stomach virus and because the child
had had a seizure.7 The child was admitted overnight
during which time a series of tests were performed that
resulted in costs of which $8076.25 remained due. The
defendants contend that they are not responsible for
the outstanding medical costs on the basis of theories
such as accord and satisfaction, lack of notice, lack of
need for the services rendered, fair and reasonable
value of the services rendered, lack of disclosure of the
risks and costs, and the parental liability for the costs
of care for a minor child.
The referee found the testimony of the plaintiff’s wit-
nesses to be overwhelming with detail regarding the
services rendered and their cost, including the medical
and insurance review of the costs assessed to the defen-
dants. According to Letitia Borras, a pediatrician, the
medical treatment provided was necessary and per-
formed as a standard course of action given the symp-
toms with which the child presented. The procedures
were reviewed with Gelb, who did not object to them.
According to Cecelia Rasines, the plaintiff’s billing rates
are audited and determined by the defendants’ insurer
and are compared with rates charged for similar treat-
ment by other medical institutions. Nurse auditors
audited the defendants’ bill by comparing the billing
rates and services rendered to the medical records and
found the billing statement was accurate.8
The defendants both testified. When counsel for the
plaintiff questioned Gelb about her responsibility to pay
for the services rendered to her child, Gelb responded
that she was not certain that she was the child’s biologi-
cal mother because, although she had given birth, she
was not with the child constantly throughout her mater-
nity stay. She, therefore, could not confirm that the
child she took home was, in fact, the child to whom
she had given birth. Thereafter, the referee questioned
Gelb whether her prior testimony regarding her uncer-
tainty as to whether she was the child’s biological
mother was truthful. The referee found that ‘‘Gelb
admitted lying on the witness stand and committing
perjury, stating that the minor child is in fact her biologi-
cal child and that she only testified of her uncertainty
as a method of assisting both of the defendants against
the plaintiff’s claims.’’
As to the child’s medical care, Gelb testified that she
had not consented to certain procedures before they
were performed, but she admitted that the child’s pedia-
trician explained the procedures to her, including the
need for a computerized axial tomography scan given
the child’s seizures. Gelb agreed to the plan and signed
an authorization for the medical procedures and agreed
to be responsible for costs not paid by insurance. Gelb
claimed that she signed the authorization while she was
under duress in the plaintiff’s emergency department.
The plaintiff placed into evidence documents Gelb had
signed for the services rendered to the child in the
present matter and for the maternity services the plain-
tiff had provided to her when her children were born.
Gelb admitted to having signed each of the documents
that evidenced her acceptance of responsibility for
the child.9
Following some initial equivocation, Schwartz too
admitted that he is the child’s biological father and that
he had no reason to believe that the child is not his.
He recognized his responsibility to pay for the costs
associated with the medical services provided to the
child. Schwartz personally had applied for the insurance
plan that was used to pay the plaintiff. He admitted
that he was responsible for paying the insurance deduct-
ible and that he was aware of the amount of the
deductible.
The defendants did not pay for the medical services
rendered to the child because they claimed the services
were not necessary. They sent a letter to the plaintiff
disputing its bill and to the state Department of Public
Health (department). Schwartz received a telephone
call from someone at the department advising him that
the department had performed a full investigation and
‘‘ ‘everything was found to be [okay].’ ’’ According to
Schwartz, the present case was not the first billing dis-
pute in which he has been involved. In other instances
in which he did not pay, the matter remained in collec-
tion for a period of time, and then the business ‘‘simply
[wrote] it off.’’ He did not think that the present matter
would result in litigation.
With respect to their special defense of accord and
satisfaction, the defendants put three documents into
evidence. The documents demonstrate that they had
paid $112.48 toward the outstanding balance they owed
the plaintiff. They sent the plaintiff a correspondence
with the payment, stating that the amount was in full
satisfaction of the outstanding balance. The defendants
argued that by accepting the payment, the plaintiff for-
gave the remaining balance due under the law of accord
and satisfaction.
The referee set out the relevant provisions of General
Statutes § 42a-3-311 titled ‘‘Accord and satisfaction by
use of instrument’’10 and analyzed the evidence. The
plaintiff’s billing statement indicated that payments
were to be mailed to P.O. Box 120048, Stamford, and
that correspondence regarding financial options was to
be mailed to P.O. Box 9317, Stamford. The defendants
mailed both their payment and correspondence regard-
ing accord and satisfaction to the payment address at
P.O. Box 120048. Rasines explained that payments
mailed to P.O. Box 120048 do not go to the plaintiff,
but, instead, go to a lock box at a Wells Fargo bank.
None of the plaintiff’s personnel, therefore, would have
seen the payment or the defendants’ correspondence.
Furthermore, on May 12, 2015, more than ninety days
after they had filed their original answers and special
defenses, the defendants amended their answers and
added special defenses of accord and satisfaction.
According to Schwartz, the defendants purposely
waited more than ninety days before amending their
answers to include the accord and satisfaction special
defenses, presumably to avoid giving the plaintiff notice
of the defense and an opportunity to conform to § 42a-
3-311 (c) (2).11
On the basis of his factual findings, the referee con-
cluded that the plaintiff had established that there was
no legitimate basis for the defendants to fail to pay the
plaintiff the balance of the moneys owed for the services
rendered to the child. The referee recognized that the
trier of fact may accept or deny all or part of any testi-
mony from a witness. He found that Gelb’s perjured
testimony and her subsequent admission of the same,
degraded her testimony. The referee was ‘‘strained to
accept any testimony provided by either defendant as
truthful,’’ as both of the defendants admitted to lies and
deceitful actions under the guise of trial strategy or
their lack of knowledge of trial procedure. As to the
defendants’ claim regarding the legitimacy and neces-
sity of the medical services rendered to the child, the
referee found that the defendants had failed to produce
any admissible evidence that contradicted the plaintiff’s
evidence. The referee, therefore, found the defendants’
defenses to be disingenuous.
According to the referee, the defendants also failed
to establish the requirements of accord and satisfaction
under § 42a-3-311. The ninety day requirement of § 42a-
3-311 (c) (2) passed only by virtue of the defendants’
purposefully deceitful tactics during the pleading stage
of the litigation, and the defendants were perhaps calcu-
lated when they made the payment itself. The plaintiff’s
billing statement set forth two distinct addresses to be
used for payments and communications. Because the
defendants failed to send their communication to the
proper address, the plaintiff never received the alleged
accord and satisfaction notice. The referee found that
the plaintiff had established that, under § 46b-37 (b),
no legitimate basis existed for the defendants’ failure
to pay the moneys they owed the plaintiff.
The referee considered the plaintiff’s request for stat-
utory prejudgment and postjudgment interest. General
Statutes § 37-3a (b) provides: ‘‘In the case of debt arising
out of services provided at a hospital, prejudgment and
postjudgment interest shall be no more than five per-
cent per year. The awarding of interest in such cases
is discretionary.’’ The plaintiff provided the defendants
with a billing statement dated June 19, 2014, in the
amount of $8076.25, and the defendants paid only
$112.48 of that amount. A net balance of $7963.77
remains due and owing the plaintiff. Pursuant to § 37-
3a (b), the balance of $7963.77 is subject to statutory
prejudgment and postjudgment interest from June 19,
2014, until the balance is paid in full at a rate of 5
percent per year. The referee reserved the plaintiff’s
request for attorney’s fees and costs to be heard by
the trial court after a judgment was rendered on the
substantive issue.
The defendants filed an objection to the referee’s
memorandum of decision, to which the plaintiff
responded. The trial court held a hearing on the defen-
dants’ objection on January 4, 2017, and issued a memo-
randum of decision on January 19, 2017.
The court first addressed the defendants’ challenge
to the referee’s jurisdiction. The defendants argued that
when they incurred the debt, it was indefinite as to
amount because neither defendant knew the cost of the
plaintiff’s services, and, therefore, the referee lacked
jurisdiction to render a decision. The plaintiff countered
that neither § 52-549n nor Practice Book § 23-58
requires a definite amount be included within the
agreement between the parties; all that is necessary is
that the complaint seek a definite sum on the basis of
the agreement.
The court explained that referees have jurisdiction
over claims for unpaid hospital services. Section 52-
549n confers jurisdiction to referees to act in a contract
action when the Superior Court refers the matter to the
referee pursuant to certain statutory criteria. A claim
may be referred to a referee if the claim is predicated
on a sum of money that is ‘‘capable of reduction to
certainty.’’ (Internal quotation marks omitted.) Housing
Authority v. Melvin, 12 Conn. App. 711, 715, 533 A.2d
1231 (1987), cert. denied, 207 Conn. 804, 540 A.2d 74
(1988).
The court recognized that our Supreme Court has
acknowledged the special nature of a contract between
a medical provider and the parents of a minor child.
‘‘[W]hen a medical service provider renders necessary
medical care to an injured minor, two contracts arise:
the primary contract between the provider and the
minor’s parents; and an implied in law contract,
between the provider and the minor himself. The pri-
mary contract between the provider and the parents is
based on the parents’ duty to pay for their children’s
necessary expenses, under both common law and stat-
ute. Such contracts, where not express, may be implied
in fact and generally arise both from the parties’ conduct
and their reasonable expectations.’’ (Footnotes omit-
ted.) Yale Diagnostic Radiology v. Estate of Fountain,
267 Conn. 351, 359, 838 A.2d 179 (2004). The court,
therefore, concluded that the referee had jurisdiction
to adjudicate the present case.
The court noted the law controlling its review of the
referee’s decision. ‘‘Attorney [fact finders] are empow-
ered to hear and decide issues of fact.’’ (Internal quota-
tion marks omitted.) Beucler v. Lloyd, 83 Conn. App.
731, 735, 851 A.2d 358 (2004), appeal dismissed, 273
Conn. 475, 870 A.2d 468 (2005). In a contract action,
findings of fact should be overturned only when they are
clearly erroneous. See Pomarico v. Gary Construction,
Inc., 5 Conn. App. 106, 112, 497 A.2d 70, cert. denied,
197 Conn. 816, 499 A.2d 1336 (1985). The court reviewed
the record and found that the referee’s numerous find-
ings of fact were amply supported by the evidence and
were not clearly erroneous, and that the principles of
law that the referee applied to those facts were legally
and logically correct.
As to credibility, the court noted the referee’s findings
with respect to the testimony of the witnesses and that
the referee was strained to accept any testimony from
the defendants as truthful. The court recognized that a
finder of fact is the sole arbiter of the credibility of
witnesses and the weight to afford their testimony. See,
e.g., Cadle Co. v. D’Addario, 268 Conn. 441, 462, 844
A.2d 836 (2004).
The court observed the defendants’ exceptional acu-
men in researching the law and fashioning legal argu-
ments, but found that they had ‘‘overlooked’’
Connecticut’s presumption of legitimacy rule, which
provides that a child born in wedlock is presumed to
be the issue of the mother and her husband. See Weiden-
bacher v. Duclos, 234 Conn. 51, 63, 661 A.2d 988 (1995).
Through their testimony, the defendants impermissibly
had attempted to shift the burden of proof of the child’s
parentage to the plaintiff. The court, therefore, con-
cluded that the referee had ample grounds to disbelieve
the defendants’ testimony.
Turning to the defendants’ special defenses of accord
and satisfaction, the court concluded that the referee
correctly determined that the defendants’ tender of a
check in the amount of $112.48 accompanied by a corre-
spondence stating that it was payment in full satisfac-
tion of the plaintiff’s invoice of $8076.25 was not an
accord and satisfaction for two reasons. First, the defen-
dants intentionally sent the check and correspondence
to an address that the plaintiff’s billing statement speci-
fied was for payment, rather than to an address speci-
fied for correspondence. As a result, the plaintiff’s
personnel never saw the correspondence. Second, the
defendants acted deceitfully when, during the pleading
stage of the litigation, they waited more than ninety
days as specified in § 42a-3-311 (c) (2) to raise the spe-
cial defense of accord and satisfaction in their amended
answers dated May 11, 2015. See footnote 11 of this
opinion.
Given the referee’s characterization of the defen-
dants’ conduct as deceitful, the court identified addi-
tional support for the referee’s rejection of the
defendants’ accord and satisfaction defense. The
threshold requirement of § 42a-3-311 is that the tender
of the check must be made in good faith. Uniform Com-
mercial Code comment (4) to the statute states: ‘‘Good
faith in subsection (a) (i) is defined as not only honesty
in fact, but also the observance of reasonable commer-
cial standards and fair dealing.’’ (Internal quotation
marks omitted.) General Statutes Annotated § 42a-3-
311, comment (4) (West 2009).12 The amount the defen-
dants tendered, $112.48, represents 1.39 percent of the
debt they owed.
The court made the following observations regarding
bad faith. In Connecticut bad faith is defined as the
absence of good faith.13 ‘‘Bad faith in general implies
both actual or constructive fraud, or a design to mislead
or deceive another, or a neglect or refusal to fulfill some
duty or some contractual obligation, and not prompted
by an honest mistake as to one’s rights or duties, but
by some interest or sinister motive. . . . Bad faith
means more than mere negligence, it involves a dishon-
est purpose.’’ (Citation omitted; internal quotation
marks omitted.) Habetz v. Condon, 224 Conn. 231, 237,
618 A.2d 501 (1992). ‘‘It is the burden of the party
asserting the lack of good faith to establish its existence
and whether that burden has been satisfied in a particu-
lar case is a question of fact.’’ (Internal quotation marks
omitted.) Kronberg Bros., Inc. v. Steele, 72 Conn. App.
53, 63, 804 A.2d 239, cert. denied, 262 Conn. 912, 810
A.2d 277 (2002). ‘‘Courts do not generally find contracts
unconscionable where the parties are businessper-
sons.’’ Emlee Equipment Leasing Corp. v. Waterbury
Transmission, Inc., 31 Conn. App. 455, 464, 626 A.2d
307 (1993).
In the present case, the court stated that both of
the defendants hold graduate business degrees and are
commercially sophisticated. Regardless of the defini-
tion of bad faith, the court found that the defendants
acted in bad faith in tendering $112.48 to the plaintiff
and, therefore, are not entitled to the benefit of accord
and satisfaction conferred by § 42a-3-311.
The court next addressed the defendants’ claim that
the authorization was invalid because it was an ‘‘unen-
forceable adhesion contract.’’ The court again noted
the controlling legal principle. The question of uncon-
scionability is one of law to be decided by the court
on the basis of all the facts and circumstances. Iamar-
tino v. Avallone, 2 Conn. App. 119, 125, 477 A.2d 124,
cert. denied, 194 Conn. 802, 478 A.2d 1025 (1984). The
court noted that ‘‘[t]he most salient feature [of adhesion
contracts] is that they are not subject to the normal
bargaining process of ordinary contracts, and that they
tend to involve a standard form contract prepared by
one party, to be signed by the party in a weaker position,
[usually] a consumer, who has little choice about the
terms . . . .’’ (Internal quotation marks omitted.) Rear-
don v. Windswept Farm, LLC, 280 Conn. 153, 162–63,
905 A.2d 1156 (2006). The classic definition of an uncon-
scionable contract is one which no person not under
delusion would make, and which no fair and honest
person would accept. Smith v. Mitsubishe Motors
Credit of America, Inc., 247 Conn. 343, 349, 721 A.2d
1187 (1998). This definition is divided ‘‘into two aspects
of unconscionability, one procedural and the other sub-
stantive, the first intended to prevent unfair surprise
and the other intended to prevent oppression.’’ Id.
The court explained that in Connecticut, the amount
that a hospital may bill for a particular service is con-
trolled by the ‘‘pricemaster,’’ citing to chapters 368z and
368aa of the General Statutes. The rates that the plaintiff
may have charged the defendants for the services ren-
dered to their child were, thus, available for public
inspection. General Statutes § 19a-681 (c) imposes a
severe penalty on a hospital for deviation from the
‘‘pricemaster.’’ The court concluded that, although it
is arguable whether the authorization Gelb signed is
procedurally unconscionable, the element of unfair sur-
prise was not present because the pricemaster was
publicly available. The pricemaster rates are based on
a national database, and there are severe consequences
for a hospital if it exceeds those rates. The defendants
offered no evidence of comparable rates for the same
services rendered at other hospitals. The court con-
cluded, therefore, that there was no basis on which to
find that the authorization was substantively uncon-
scionable.
With respect to Schwartz’ special defense that he was
not a signatory to the authorization, the court next
determined that Schwartz was liable under the authori-
zation pursuant to § 46b-37, regardless of whether he
signed the authorization. Section 46b-37 provides in
relevant part: ‘‘(b) Notwithstanding the provisions of
subsection (a) of this section, it shall be the joint duty
of each spouse to support his or her family, and both
shall be liable for: (1) The reasonable and necessary
services of a physician or dentist; (2) hospital expenses
rendered the husband or wife or minor child while
residing in the family of his or her parents . . . .’’
Accordingly, the court found that the plaintiff had
proved that the defendants had breached the authoriza-
tion as alleged in count two of the complaint.
In summary, the court stated that it had addressed the
remainder of the defendants’ fourteen special defenses
implicitly in its foregoing analysis or the defenses were
otherwise unmeritorious. It rendered judgment in favor
of the plaintiff in the amount of $7963.77. The court
thereafter found that it was fair and equitable to award
the plaintiff prejudgment and postjudgment interest at
the rate of 5 percent from June 19, 2014, the date the
plaintiff provided the defendants with a billing
statement.
With respect to attorney’s fees, the court issued an
order permitting the plaintiff to file an itemized affidavit
of attorney’s fees and the defendants to object, if they
wished. Thereafter, the plaintiff filed a motion for a
special finding that the denials and defenses pleaded
by the defendants were without merit and not brought
or asserted in good faith. See General Statutes § 52-226
(a). It also filed a motion for double costs and reason-
able counsel fees pursuant to General Statutes § 52-
24514 and a motion for attorney’s fees on the basis of
the defendants’ bad faith. It submitted the affidavit of
Vimala B. Ruszkowski, its trial counsel, attesting to
attorney’s fees of $34,082.20 and costs of $2059.64. The
defendants objected to each of the plaintiff’s motions
and request for attorney’s fees.
The court responded to the plaintiff’s motion seeking
a finding of bad faith, on April 13, 2017, stating that it
had found bad faith as a matter of law in its decision
regarding the defendants’ special defenses of accord
and satisfaction, and remanded the case to the referee
for a finding of whether any other acts of either or both
defendants were made in bad faith and, if so, to identify
those acts with particularity.15 On May 30, 2017, the
referee submitted a supplemental memorandum of
decision.
The referee identified the special defenses asserted
by the defendants and found that all of them were
pleaded in bad faith. The referee iterated his findings
regarding the defendants’ credibility, which alone gave
rise to an overall finding of bad faith. Nonetheless,
the referee found that specific evidence of bad faith
regarding the special defenses was more than abundant
at trial so as to affirm his overall finding.
With respect to special defenses one, three, four, five,
seven, nine, ten, and eleven,16 the referee found that
prior to the onset of the litigation, the plaintiff took
considerable measures to assist the defendants with
their concerns regarding the bill, explaining how medi-
cal billing is calculated, and describing state oversight
and regulations. The defendants were advised that the
department had investigated the matter and found the
bill to be accurate. The defendants presented no con-
trary evidence. The referee, therefore, concluded that
the special defenses lacked merit and were not pleaded
in good faith.
Special defenses two and six alleged, respectively,
that the plaintiff’s agents rendered one or more unnec-
essary and/or harmful services to the child for which
the defendants should not be billed and that there was
no proof that the plaintiff’s agents performed the service
for which it had billed. The referee found that there
was abundant evidence that Gelb met with the child’s
pediatrician and discussed the treatment being pro-
vided. Gelb trusted the child’s pediatrician and no physi-
cian has ever told Gelb that the care and treatment
rendered to the child were unnecessary. Gelb never
complained about the treatment prior to receiving the
plaintiff’s bill. The defendants, therefore, had no good
faith basis to plead special defenses two and six, and
as such, the referee found that the defenses were pur-
sued in bad faith.
The referee further found that special defenses
twelve, thirteen, and fourteen17 were raised and pursued
without any good faith basis. Both defendants were
aware of their financial responsibilities for the child.
Gelb identified her signature on the authorization.
Schwartz made the arrangements for his family’s medi-
cal insurance and knew what portion of the bill insur-
ance would pay and what portion he would have to
pay. The defendants’ testimony was in sharp contrast
to the special defenses. The referee, therefore, decided
that it was logical to conclude that the defendants had
pursued the special defenses in bad faith.
According to the referee, there was no basis for the
defendants to defend the plaintiff’s claims, and they
used the judicial system as a means to avoid, or at least
to delay, paying their financial obligation. Schwartz
audaciously testified that he never expected the plaintiff
to pursue the matter in litigation, because he had
avoided financial responsibilities in the past by using
similar methods. The defendants went so far as to at
least raise doubt about their biological relationship to
the child in a failed attempt to avoid their financial
responsibility. The referee concluded that such evi-
dence made the determination of bad faith effortless
and conclusive.
The defendants objected to the referee’s supplemen-
tal memorandum of decision. The plaintiff replied, ask-
ing the court to overrule the defendants’ objection and
to order the defendants to pay attorney’s fees. The court
ruled on the defendants’ objection on September 6,
2017, noting the referee’s findings that the defendants
had acted in bad faith, that they denied being the child’s
biological parents, and that they lacked credibility.
In adjudicating the plaintiff’s § 52-226a motion, the
court noted its inherent power to regulate the conduct
of litigants whether they are members of the bar; see
State Bar Assn. v. Connecticut Bank & Trust Co., 145
Conn. 222, 231, 140 A.2d 863 (1958), or laypersons. See
Lederle v. Spivey, 174 Conn. App. 592, 601, 166 A.3d
636, cert. granted on other grounds, 327 Conn. 954, 171
A.3d 1050 (2017). Connecticut courts, however, are to
be ‘‘solicitous of [self-represented] litigants when it
does not interfere with the rights of other parties . . . .
[T]he right of self-representation [however] provides
no attendant license not to comply with the relevant
rules of procedural and substantive law.’’ (Citation
omitted; internal quotation marks omitted.) Macricos-
tas v. Kovacs, 67 Conn. App. 130, 133, 787 A.2d 64
(2001).
Section 52-226a authorizes sanctions for certain con-
duct that offends the court’s power to regulate the con-
duct of litigants. The statute creates an evidentiary
dividend, which may be used in subsequent litigation.
The court may exercise its power when self-represented
litigants are commercially sophisticated as the defen-
dants are in the present case. Gelb has a master of
business administration degree from Columbia Univer-
sity and previously worked as a business planner and
financial controller. Schwartz has a master of business
administration degree from New York University. At
the time of trial, he was the vice president for fair
lending practices at a major banking institution.
On the basis of the referee’s findings and its own
independent examination of the record, the court con-
cluded that the deficit in the defendants’ credibility
permeated the entire proceeding. The court character-
ized the defendants’ testimony as ‘‘a study in prevarica-
tion, equivocation and obfuscation.’’ (Internal quotation
marks omitted.) The primary basis for the court’s con-
clusion was the defendants’ denial of parentage of
the child.18
The court applied the two part bad faith test to deter-
mine whether the defendants’ conduct constituted bad
faith, thereby entitling the plaintiff to attorney’s fees.
See Munro v. Munoz, 146 Conn. App. 853, 860–61, 81
A.3d 252 (2013). The court set forth the applicable law.
‘‘[T]he trial court is obligated to find both that the liti-
gant’s claims were entirely without color and that the
litigant acted in bad faith . . . and the court must set
forth its factual findings with a high degree of specificity
before awarding attorney’s fees.’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.)
Lederle v. Spivey, supra, 174 Conn. App. 598 n.2.
‘‘To ensure . . . that fear of an award of [attorney’s]
fees against them will not deter persons with colorable
claims from pursuing those claims, [our Supreme Court
has] declined to uphold awards under the bad-faith
exception absent both clear evidence that the chal-
lenged 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 findings of [the] lower courts.’’ (Internal quota-
tion marks omitted.) Maris v. McGrath, 260 Conn. 834,
845, 850 A.2d 133 (2004).
‘‘[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 clam 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.’’ (Internal quotation
marks omitted.) Lederle v. Spivey, supra, 174 Conn.
App. 602.
‘‘To determine whether the bad-faith exception
applies, 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 main-
taining the litigation.’’ (Internal quotation marks omit-
ted.) Berzins v. Berzins, 306 Conn. 651, 662, 51 A.3d
941 (2012).
With respect to the colorability prong, the court
framed the issue as whether ‘‘the defendants’ conduct
in denying the parentage of their child while under oath
in order to defeat legitimate claims made by the plaintiff
for medical services rendered to their child constitute
a colorable defense to the action? The answer depends
upon whether a reasonable person, given his or her
firsthand knowledge of the underlying matter could
have concluded that the facts supporting the claim of
nonparentage might have been established.’’ The rea-
sonable person test requires a determination of what
‘‘a reasonable person of honest intentions would know
or believe under the facts of the case.’’ State v. Lenczyk,
1 Conn. App. 270, 271, 470 A.2d 1240 (1984).
Because the defendants were the biological parents
of the child, the court found that there was ‘‘no one in
the world who could or would have known the underly-
ing facts of parentage better than [they].’’ No reasonable
person acting with honest intentions could have con-
cluded that the child was not the defendants’ child. The
defendants acted with a dishonest purpose when they
denied paragraph 2 of count one of the complaint, which
alleged that they were the child’s parents. Their denial
is even more ‘‘poignant’’ when it is viewed in the context
of the common-law presumption of legitimacy that pro-
vides that a child born in wedlock is presumed to be
the issue of the mother and her husband. See Weiden-
bacher v. Duclos, supra, 234 Conn. 63. Coupled with the
presumption of legitimacy, § 46b-37 imposes statutory
liability on the defendants for the necessary and reason-
able medical services rendered to their child.
Connecticut courts historically have imposed sanc-
tions on parties for untruthful pleading. A plea of gen-
eral denial to material allegations of the complaint that
the defendant knew to be true subjects a litigant to pay
expenses incurred to establish the truth. See Hatch v.
Thompson, 67 Conn. 74, 76, 34 A. 770 (1895). In Jen-
nings Co. v. DiGenova, 107 Conn. 491, 494, 141 A. 866
(1928), our Supreme Court held that the defendant
should have been charged with the plaintiff’s reasonable
expenses for untruthfully pleading ‘‘denial of a fact with-
out reasonable cause.’’ The rules of practice similarly
address the subject. See Practice Book §§ 4-2 (b) and
10-5.19
The court found that the defendants’ disavowal of
their previous acknowledgement of the child’s parent-
age to avoid a debt is counter to the accepted norms
of a civilized world. The court noted that in a termina-
tion of parental rights case instituted by a child’s father,
our Supreme Court denounced the practice, stating: ‘‘It
would be anathema for our law to allow parents to
terminate voluntarily their parental rights solely for the
purpose of evading or relieving [themselves] of respon-
sibility to pay child support.’’ (Internal quotation marks
omitted.) In re Bruce R., 234 Conn. 194, 200, 662 A.2d
107 (1995). The trial court found that in the present
case, the defendants had used the child’s parentage as
a way to avoid paying a legitimate charge for medical
services rendered to the child for which they were
legally obligated. The court thus concluded that the
defendants’ denial of parentage and the defense made
at trial were without color because they constituted
an oppressive tactic and were designed to achieve a
dishonest purpose. The court determined that its find-
ing was supported by clear evidence. See Wildwood
Associates, Ltd. v. Esposito, 211 Conn. 36, 42 n.3, 557
A.2d 1241 (1989) (clear evidence same substantive stan-
dard as clear and convincing proof).
The trial court stated that, under § 52-226a,20 a court
need find only a single defense to be without merit and
not asserted in good faith before the finding may be
admitted in a vexatious defense case under General
Statutes § 52-568.21 The referee found that multiple
defenses asserted by the defendants fell into the bad
faith category. The defendants argued that a defense is
not asserted in bad faith and is colorable if it had been
believed or were believable. The court rejected the
argument.
By way of contrast, the court noted the defendants’
first special defenses that the plaintiff’s bill was unrea-
sonably high, which reflected a mental state that is
not uncommon to the average patient who receives a
multipage, itemized bill with a surprisingly high total.
The first special defense, therefore, was colorable. The
defendants, however, failed to prove their defense that
the plaintiff’s charges were unreasonable. Reasonable-
ness is a question of fact for the trier of fact. The court
found that the plaintiff proved the reasonableness of
its bill. See Andrews v. Gorby, 237 Conn. 12, 23, 675 A.2d
449 (1996) (reasonableness of compensation requested
proved by preponderance of evidence).
In their second special defenses, the defendants
pleaded that the services rendered by the plaintiff were
unnecessary and/or harmful. The court concluded that
there was no basis for the defendants to have pleaded
such a special defense because there were no facts to
support it.
In their fourth special defenses, the defendants
pleaded that the plaintiff provided false or misleading
information. The court found no facts to support the
pleading or credible evidence to support the defen-
dants’ claim.
The defendants’ fifth special defenses alleged that
the plaintiff failed to disclose the amount it would
charge for the services rendered to the child. Other than
the statutory obligation to post its charges pursuant to
§ 19a-681 (a) as a ‘‘pricemaster’’ where it is available
for public inspection at the Office of Health Care
Access, the plaintiff was under no statutory or common-
law duty to advise the defendants in advance of the
amount of its charges. Under the circumstances, the
court found that there was no way that nondisclosure
of unit prices or a lack of informed consent to the
charges had any basis in fact and, therefore, could not
have been established.
The court found the sixth special defenses, which
alleged that the plaintiff had no proof that it performed
the services for which it billed to the defendants, to
be altogether implausible. Gelb testified that after the
services were performed, she discussed the very ser-
vices with the child’s pediatrician, who reassured her
that such services were appropriate under the circum-
stances. The defendants knew full well before the litiga-
tion began that the services billed had been rendered.
The court concluded that such a defense would have
been effective if it were true, but that in the present
case it had no basis in fact and was not colorable.
The seventh special defenses asserted that the ser-
vices rendered by the plaintiff could not be identified
because the bill was ‘‘not written in plain English.’’ The
court found no factual support for such a defense, and
the defendants presented no evidence of a statutory or
regulatory requirement to that effect. Section 19a-681
governs the posting of hospital charges.22 The plaintiff’s
billing statement identifies each service performed in
language that an ordinary person with no medical train-
ing can understand. The court found it inconceivable
given the extent of the defendants’ formal educations
that they were unable to identify the services rendered.
The defense, therefore, was frivolous and without color.
The court previously had addressed the special
defenses of accord and satisfaction but added that it
is a well recognized defense. The defendants’ use of it,
however, solely as an artifice of avoidance, was deceit-
ful and without color when considered with the defen-
dants’ other mertiless defenses.
The twelfth special defenses alleged that Gelb had
never received a bill for the services the plaintiff ren-
dered to the child. The court found the special defense
to be a falsehood. The defendants testified that they not
only received the bill but also took affirmative action
calculated to avoid paying all but a miniscule amount
of the debt. The falsehood was perpetrated for no other
purpose than to avoid paying the bill. The defense,
therefore, was without color.
With regard to the defendants’ fourteenth special
defenses that Schwartz did not sign the authorization
and, therefore, could not be held liable, the court con-
cluded that it lacked any indicia of color. In view of
the defendants’ extraordinarily thorough research, the
court found it incredible that they missed the most
basic principle governing a parent’s financial responsi-
bility for a child. Section 46b-37 (2) imposes a legal
obligation on a parent of a minor child while the child is
residing in the family of its parents. See Yale Diagnostic
Radiology v. Estate of Fountain, supra, 267 Conn. 361.
Consequently, it is immaterial to Schwartz’ liability
whether he signed the authorization. Gelb testified that
she recognized her responsibility to pay for the medical
services rendered to the child because she is the child’s
parent. This defense becomes disingenuous when
Schwartz asserts that he has no concomitant responsi-
bility.
Having concluded that the referee’s findings as to
whether the defendants’ special defenses were color-
able were amply supported by the evidence, the court
moved to the second prong of the test set out in Maris
v. McGrath, supra, 269 Conn. 845, i.e., whether the
defendants acted in bad faith.
‘‘Bad faith in general implies both actual or construc-
tive fraud, or a design to mislead or deceive another,
or a neglect or refusal to fulfill some duty or some
contractual obligation, not prompted by an honest mis-
take as to one’s rights or duties, but by some interested
or sinister motive. . . . Bad faith means more than
mere negligence; it involves a dishonest purpose.’’
(Internal quotation marks omitted.) De La Concha of
Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424,
433, 849 A.2d 382 (2004). The definition of bad faith in
Maris is somewhat different: ‘‘To determine whether
the bad faith exception applies, the court must assess
whether there has been substantive bad faith as exhib-
ited by, for example, a party’s use of oppressive tactics
or its wilful violations or 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.) Maris v. McGrath, supra,
269 Conn. 847. In cases involving debt collection avoid-
ance, a bankruptcy court looks to the totality of the
circumstances and may consider a wide range of fac-
tors, including ‘‘the nature of the debt . . . the timing
of the [bankruptcy] petition; how the debt arose; the
debtor’s motive in filing the petition; how the debtor’s
actions affected creditors; the debtor’s treatment of
creditors both before and after the petition was filed;
and whether the debtor has been forthcoming with the
bankruptcy court and the creditors.’’ (Internal quotation
marks omitted.) In re Meyers, 491 F.3d 120, 152 (3d
Cir. 2007). The court determined that most of the factors
applied to the defendants.
The court concluded that, under any definition, the
defendants had acted in bad faith. Under the De La
Concha of Hartford, Inc., definition, the defendants’
refusal to fulfill their contractual obligation was not
prompted by an honest mistake as to their rights or
duties. Rather, they carefully contrived a scheme
prompted by the dishonest purpose to avoid a financial
obligation by lying under oath and asserting defenses
that bear no indicia of color. The court agreed with
the referee that the ‘‘defendants’ prevarications and
obfuscation permeated the entire trial and infiltrated
their pleadings.’’ The court, therefore, specifically found
that the special defenses identified in its memorandum
of decision were without merit and that they were not
prompted by an honest mistake as to either the defen-
dants’ rights or duties.
The court turned to the plaintiff’s request for attor-
ney’s fees. The defendants argued that the total attor-
ney’s fees that may be awarded to the plaintiff could
not exceed 15 percent of the judgment pursuant to
General Statutes § 42-150aa (b).23 The court disagreed,
concluding that the plaintiff’s claim was not limited by
statute, but was controlled by the common-law rule
that the court may award attorney’s fees for bad faith.
The court reasoned that whenever there is an attorney’s
fee provision in a consumer party’s contract, that provi-
sion is subject to § 42-150aa unless it is coupled with
a distinctly different cause of action such as a breach
of contract claim. A rule of statutory construction pro-
vides that ‘‘[n]o statute is to be construed as altering
the common law, farther than its words import [and
. . . a statute] is not to be construed as making any
innovation upon the common law which it does not
fairly express.’’ (Internal quotation marks omitted.)
State v. Luzietti, 230 Conn. 427 433, 646 A.2d 85 (1994).
In Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 69–72,
689 A.2d 1097 (1997), our Supreme Court construed the
scope of General Statutes § 42-150bb,24 the sister statute
of § 42-150aa, in determining that the statute did not
limit a successful defendant in a consumer contract
case to the 15 percent allowed in § 42-150aa. The court
looked to the plain language of the statute and was
persuaded that the phrase ‘‘ ‘the terms governing the
size of the fee for the commercial party,’ relates to
the parties’ contract, and not to § 42-150aa. Had the
legislature intended to limit consumer awards of attor-
ney’s fees to 15 percent, it would have incorporated
the provisions of § 42-150aa by expressly providing ‘as
provided in § 42-150aa.’ Moreover, reading § 42-150bb
in context, as we must, it is clear that the phrase, ‘the
terms governing the size of the fee for the commercial
party,’ relates to ‘the contract or lease’ as provided
in the immediately preceding sentence in the statute.’’
Id., 74.
The court in the present case, relying on its discussion
of Rizzo, stated ‘‘from the language of subsection (b)
of § 42-150aa, it is clear that the fee limitation was
intended to apply to a consumer contract, which by
our decisional law is imported into that contract, and
not to bad faith conduct of a party which is an actionable
wrong [that] exists independently of the contract.’’ The
court, therefore, concluded that it was free to award
attorney’s fees for bad faith conduct independent of
the authorization and that it had a proper basis for
extending the award to Schwartz.
The plaintiff’s counsel filed an affidavit for attorney’s
fees seeking a total of $34,082.20. The affidavit is item-
ized, identifies each attorney who performed a service,
provides the attorney’s respective hourly rate, describes
the service, and assigns a time factor in hours and
minutes, and the corresponding cost. The hourly rate
for each attorney ranged from $175 to $265 per hour,
with most entries at $185. The defendants objected to
the fees on several grounds.
Schwartz disclaimed liability because (1) he was not
contractually obligated to pay and (2) there is no statute
that requires a spouse to pay another spouse’s attor-
ney’s fees. The court referred to its prior explanation
as to why Schwartz is responsible to pay for the child’s
medical care pursuant to the authorization signed by
Gelb. As to the second reason, the court found it to be
an attempt to distinguish Schwartz’ statutory liability
for the child’s medical care from interspousal liability
for attorney’s fees for which there is no liability in the
present context. The court found the argument to be
disingenuous, as it purposefully overlooks parental
responsibility fixed by statute.
The defendants also challenged the reasonableness
of the attorney’s fees requested. The court held an evi-
dentiary hearing to permit the defendants to cross-
examine the plaintiff’s counsel and to offer evidence
of their own that the attorney’s fees were unreasonable.
The defendants claimed that the attorney’s fees
exceeded the amount prayed for in the complaint, i.e.,
$15,000. The court explained that the plaintiff’s classifi-
cation of the case in its complaint as seeking less than
$15,000 is designed for administrative purposes only
and does not limit the amount of damages that can be
recovered. See Southington ’84 Associates v. Silver
Dollar Stores, Inc., 237 Conn. 758, 765, 678 A.2d 968
(1996). Moreover, Practice Book § 11-21 treats the
award of attorney’s fees separately from the com-
plaint.25 Id., 766.
The defendants also argued that the amount of attor-
ney’s fees sought was disproportionate to the amount
in controversy. The court acknowledged that dispropor-
tionality of legal fees is one of the many factors that a
court is required to consider in assessing whether an
attorney’s fee is reasonable. See Rules of Professional
Conduct 1.5. Cases discussing the propriety of awarding
disproportionate fees focus on the amount recovered
in comparison to the amount claimed for fees. See, e.g.,
Simms v. Chaisson, 277 Conn. 319, 332–34, 890 A.2d
548 (2006). In the present case, the plaintiff recovered
the entire amount claimed.
The court found the 241.6 hours of time the plaintiff’s
attorneys devoted to the present case to be dispropor-
tionate to the amount recovered by any ordinary assess-
ment. Although the trial itself took less than two days,
there were 248 entries in the docket, which was greatly
disproportionate to the average activity in a similar
case. The defendants complained that the plaintiff was
represented by two attorneys at trial. The court stated
that this was no ordinary collection matter, but one
that was overburdened with ‘‘creative’’ defenses and
objections, as well as excessive pleading, and that the
self-represented defendants transformed a relatively
straightforward collection case into a ‘‘pitched legal
battle.’’ See Rana v. Terdjanian, 136 Conn. App. 99,
117, 46 A.3d 175, cert. denied, 305 Conn. 926, 47 A.3d
886 (2012). The court considered the foregoing factors
in addition to those enumerated in rule 1.5 of the Rules
of Professional Conduct.
‘‘[When determining] reasonableness of requested
attorney’s fees . . . more than [a] trial court’s mere
general knowledge is required for an award of attorney’s
fees. . . . The burden of showing reasonableness rests
on the party requesting the fees, and there is an undis-
puted requirement that the reasonableness of attorney’s
fees and costs must be proved by an appropriate eviden-
tiary showing. . . . [T]here must be a clearly stated
and described factual predicate for the fees sought,
apart from the trial court’s general knowledge of what
constitutes a reasonable fee. . . . That factual predi-
cate must include a statement of the fees requested and
a description of services rendered.’’ (Internal quotation
marks omitted.) Gagne v. Vaccaro, 118 Conn. App. 367,
371–72, 984 A.2d 1084 (2009). A party need not present
expert testimony regarding attorney’s fees. William
Raveis Real Estate, Inc. v. Zajaczakowski, 172 Conn.
App. 405, 424, 160 A.3d 363 (2017). The court properly
may rely on a financial affidavit, as well as its own
knowledge and involvement with the trial, to ascertain
reasonable attorney’s fees. Id.
The court applied the foregoing guidelines and found
that the hourly rates of the plaintiff’s counsel were
reasonable and that the time expended was reasonably
necessary. The court concluded that the plaintiff had
met its burden of providing a factual predicate for the
attorney’s fees and awarded it the full amount requested
against both defendants.
The defendants have raised twenty-three claims on
appeal. On the basis of our thorough review of the
record, we conclude that none of the claims is meritori-
ous and most of them are not reviewable, as the record
is inadequate for review, or the claim was not preserved
or adequately briefed, or is inappropriate as this court
does not, sua sponte, look for reasons to reverse the
judgment of the trial court.
In conducting our examination of the record and the
memoranda of decision written by the referee and trial
court, we are mindful of the applicable legal principles
and standards of review. ‘‘A reviewing authority may
not substitute its findings for those of the trier of the
facts. This principle applies no matter whether the
reviewing authority is the Supreme Court . . . the
Appellate Court . . . or the Superior Court reviewing
the findings of the . . . attorney trial referees. . . .
This court has articulated that attorney trial referees
and [fact finders] share the same function . . . whose
determination of the facts is reviewable in accordance
with well established procedures prior to the rendition
of judgment by the court. . . .
‘‘The factual findings of a[n] [attorney trial referee]
on any issue are reversible only if they are clearly erro-
neous. . . . [A reviewing court] cannot retry the facts
or pass upon the credibility of the witnesses. . . . 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.) LPP Mortgage, Ltd.
v. Lynch, 122 Conn. App. 686, 692, 1 A.3d 157 (2010).
‘‘Our standard of review concerning a trial court’s
findings of fact is well established. If the factual basis of
the court’s decision is challenged, our review includes
determining whether the facts set out in the memoran-
dum of decision are supported by the record or whether,
in light of the evidence and pleadings in the whole
record, those facts are clearly erroneous. . . . Further,
a court’s inference of fact is not reversible unless the
inference was arrived at unreasonably.’’ (Internal quota-
tion marks omitted.) Stein v. Tong, 117 Conn. App. 19,
24, 979 A.2d 494 (2009).
‘‘The trial court’s legal conclusions are subject to
plenary review. [W]here the legal conclusions of the
court are challenged, we must determine whether they
are legally and logically correct and whether they find
support in the facts set out in the memorandum of
decision . . . .’’ (Internal quotation marks omitted.)
Hartford Fire Ins. Co. v. Werner, 91 Conn. App. 685,
687–88, 881 A.2d 1065, cert. denied, 276 Conn. 919, 888
A.2d 88 (2005).
It is well established that appellate courts ‘‘review
the trial court’s decision to award attorney’s fees for
abuse of discretion. . . . This standard applies to the
amount of fees awarded . . . and also to the trial
court’s determination of the factual predicate justifying
the award. . . . 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. . . .
‘‘Connecticut adheres to the American rule, which
provides that attorney’s fees and ordinary expenses and
burdens of litigation are not allowed to the successful
party absent a contractual or statutory exception. . . .
When a contract expressly provides for the recovery
of reasonable attorney’s fees, an award under such a
clause requires an evidentiary showing of reasonable-
ness. . . . A trial court may rely on its own general
knowledge of the trial itself to supply evidence support
of an award of attorney’s fees. . . . The amount of
attorney’s fees to be awarded rests in the sound discre-
tion of the trial court and will not be disturbed on appeal
unless the trial court has abused its discretion. . . .
Sound discretion, by definition, means a discretion that
is not exercised arbitrarily or wilfully, but with regard
to what is right and equitable under the circumstances
and the law . . . .’’ (Citation omitted; internal quota-
tion marks omitted.) LLP Mortgage, Ltd. v. Lynch,
supra, 122 Conn. App. 702.
On the basis of our extensive review of the record
and examination of the well reasoned memoranda of
decision of the referee and trial court, we conclude that
the record supports their findings that the defendants
are indebted to the plaintiff and that they exhibited bad
faith throughout the litigation. This is the rare case in
which the arguments put forth are so preposterous,
audacious, and transparent, and the attempt to avoid
payment so obvious, that a finding of bad faith is com-
pelled. Above all else, credibility determinations are to
be made by the finder of fact who may accept all, some,
or none of the testimony of a witness. See Cusano v.
Lajoie, 178 Conn. App. 605, 609, 176 A.3d 1228 (2017).
The referee acted well within his authority to find by
a preponderance of the evidence that the defendants
were untruthful. See Kaczynski v. Kaczynski, 294
Conn. 121, 126, 981 A.2d 1068 (2009) (preponderance of
evidence usual standard in civil case). The defendants
testified that they were uncertain of the child’s parent-
age despite the overwhelming contrary circumstantial
evidence. Their behavior in predicating their defense
on such a denial is deeply offensive to the norms of
civil society. Accordingly, because the record supports
the findings of the referee and the court that the defen-
dants acted in bad faith, the court’s decision to award
attorney’s fees is legally and logically correct. For the
foregoing reasons, the defendants’ appeal fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In this opinion, we refer to the defendants individually by their respective
surnames and collectively as the defendants, where appropriate.
2
The referee was Attorney Anthony J. Medico.
3
General Statutes § 46b-37 (b) provides in relevant part: ‘‘[I]t shall be the
joint duty of each spouse to support his or her family, and both shall be
liable for . . . (2) hospital expenses rendered the husband or wife or minor
child while residing in the family of his or her parents . . . .’’
4
The defendants’ insurer paid the portion of the bill for which it was
responsible.
5
General Statutes § 52-549n provides in relevant part: ‘‘[T]he judges of
the Superior Court may make such rules . . . to provide a procedure in
accordance with which the court, in its discretion, may refer to a fact-finder
for proceedings authorized pursuant to this chapter, any contract action
pending in the Superior Court . . . in which only money damages are
claimed and which is based on an express or implied promise to pay a definite
sum, and in which the amount, legal interest or property in controversy is
less than fifty thousand dollars exclusive of interest and costs. . . .’’
6
Practice Book § 23-53 provides in relevant part: ‘‘The court, on its own
motion, may refer to a fact finder any contract action pending in the Superior
Court . . . in which money damages only are claimed, which is based upon
an express or implied promise to pay a definite sum, and in which the amount,
legal interest or property in controversy is less than $50,000, exclusive of
interest and costs. . . .’’
7
The record discloses that the child was transported to the hospital by
ambulance.
8
The child’s medical chart was placed into evidence. By letter dated July
3, 2013, Maggie Zurita, a nurse and senior risk associate of the plaintiff,
wrote to Schwartz stating in part: ‘‘This letter is in response to the concerns
you outline in your letter of May 5, 2013 to the Accounts Receivable Depart-
ment. . . .
‘‘The care and treatment of your [child] has been reviewed by the Chair
of Emergency Medicine, Chair of Pediatrics and the Director of Maternal
Child Health. . . .
‘‘In your case, our investigation shows that your bill was calculated cor-
rectly and in accordance with the contract you have with your insurance
provider. The amount on your bill is the amount for which you are responsi-
ble for the service(s) or procedure(s) you received, and reflects discounts
your insurance provider has negotiated with us.’’
9
The authorization provided in relevant part: ‘‘4. FINANCIAL
AGREEMENT: The undersigned agrees, whether he/she signs as patient or
as legal representative, that in consideration of the services to be rendered
to the patient, he/she hereby individually obligates himself/herself to pay
the account of the Hospital and any physician or physician organization
providing such services on a fee for service basis to the patient in accordance
with the regular rates and terms of the Hospital and any such physician or
physician organization. Should the account be referred to an attorney for
collection, the undersigned shall pay reasonable attorney’s fees and collec-
tion expenses. All delinquent accounts bear interest at the legal rate.’’
Paragraph 4 of the patient authorization and agreement that Gelb signed
for the 2009 and 2011 child birth admissions state the same.
10
General Statutes § 42a-3-311 provides in relevant part: ‘‘(a) If a person
against whom a claim is asserted proves that (i) that person in good faith
tendered an instrument to the claimant as full satisfaction of the claim, (ii)
the amount of the claim was unliquidated or subject to a bona fide dispute,
and (iii) the claimant obtained payment of the instrument, the following
subsections apply.
‘‘(b) Unless subsection (c) applies, the claim is discharged if the person
against whom the claim is asserted proves that the instrument or an accompa-
nying written communication contained a conspicuous statement to the
effect that the instrument was tendered as full satisfaction of the claim.
. . .’’ See footnote 11 of this opinion.
11
General Statutes § 42a-3-311 (c) provides in relevant part: ‘‘Subject to
subsection (d), a claim is not discharged under subsection (b) if either of
the following applies . . . (2) The claimant . . . proves that within ninety
days after payment of the instrument, the claimant tendered repayment of
the amount of the instrument to the person against whom the claim is
asserted. . . .’’ (Emphasis added.)
12
See Auto Glass Express, Inc. v. Hanover Ins. Co., 98 Conn. App. 784,
790, 912 A.2d 513 (2006), cert. denied, 281 Conn. 914, 916 A.2d 55 (2007),
quoting General Statutes Annotated § 42a-3-311, comment (4) (West 2009);
accord IFC Credit Corp. v. Bulk Petroleum Corp., 403 F.3d 869, 874 (7th
Cir. 2005) (‘‘[o]rdinarily the good faith requirement is violated where there
is no bona fide mutual dispute concerning consideration, or the party tender-
ing the payment affirmatively misleads the claimant’’ [emphasis in
original]).
13
See Habetz v. Condon, 224 Conn. 231, 236–37, 618 A.2d 501 (1992)
(standard definition of bad faith is absence of good faith); see also Kupers-
mith v. Kupersmith, 146 Conn. App. 79, 98 n.14, 78 A.3d 860 (2013) (same).
14
The plaintiff contended that it was entitled to reasonable attorney’s fees
pursuant to the authorization and § 52-245 for the defendants’ statement
that they possessed a bona fide defense to each of the plaintiff’s legal claims,
when the statement was made without just cause.
15
The remand order was issued pursuant to Maris v. McGrath, 269 Conn.
834, 845, 850 A.2d 133 (2004) (to award attorney’s fees there must be clear
evidence that challenged actions are entirely without color and taken for
improper purposes), and Fattibene v. Kealey, 18 Conn. App. 344, 359–60,
558 A.2d 677 (1989) (court’s inherent authority to impose sanction of attor-
ney’s fees for bad faith pleading).
16
In brief, the special defenses alleged, respectively, that the amount of the
bill was unreasonably high, the plaintiff’s agents failed to disclose pertinent
information about the services rendered, the plaintiff’s agents provided false
or misleading information, prior to rendering services the plaintiff’s agents
did not disclose the amount it would charge for those services, the defen-
dants cannot identify all of the services the plaintiff alleges were provided,
the authorization is an unconscionable adhesion contract, because the plain-
tiff failed to disclose the amounts it would charge for the services provided
prior to performing them, the court must determine the reasonable value
of those services, and a contract requiring one or both defendants to pay
in full for services rendered instead of requiring one or both of them to pay
the plaintiff a reasonable amount for the services rendered is unconsciona-
ble. The referee did not address the special defense of accord and satisfac-
tion, which was decided by the court.
17
Special defenses twelve, thirteen and fourteen alleged, respectively, that
Gelb was never billed for the services rendered and cannot be expected to
pay for them, the authorization was not filed in court or provided to the
defendants within the timeframe of Practice Book § 10-29 (a) and should
not be admitted into evidence, and the plaintiff did not allege that Schwartz
signed any contract with it, and, therefore, the second count should be
dismissed against him.
18
The court quoted the following examination of Gelb by the plaintiff’s
counsel and the referee that demonstrates Gelb’s denial of parentage, her
equivocation, her justification for the denial, her statutory and contractual
obligation to pay, and the scheme the defendants developed:
‘‘[The Plaintiff’s Counsel]: Good afternoon, Ms. Gelb. Isn’t it true that you
are the mother of [the child]?
‘‘[Gelb]: I don’t know. [The child] is the child that lives with me, but I
was not with [the child] all the time in the hospital after I gave birth, so
I’m not sure if [the child] is the child I gave birth to.
‘‘[The Plaintiff’s Counsel]: Okay, so you’re stating here under affirmation,
that you don’t know whether you’re the mother of [the child]?
‘‘[Gelb]: Correct.
‘‘[The Plaintiff’s Counsel]: You gave birth to [the child], isn’t it true that
you gave birth to [the child] at Stamford Hospital in August, 2011?
‘‘[Gelb]: I gave birth to a [child] at Stamford Hospital.
‘‘[The Plaintiff’s Counsel]: If you’re uncertain that [the child] is your child,
have you made any efforts to locate a child that could potentially be yours
rather than [the child]?
‘‘[Gelb]: No.
***
‘‘[The Referee]: Okay. Are you saying you don’t know because you are
unaware as to whether the child is the subject matter of this litigation is
actually yours?
‘‘[Gelb]: Correct.
‘‘[The Plaintiff’s Counsel]: You called [the child] and acknowledge [the
child] as that for all other purposes and all other situations, except this
litigation. Correct?
‘‘[Gelb]: Correct.
‘‘[The Plaintiff’s Counsel]: And you are doing that because you think if
you cast some doubt on whether you are the parent of the [child], that will
absolve your duty to pay for [the child]. Correct?
‘‘[Gelb]: Correct.’’
The court then quoted the following examination of Schwartz by the
plaintiff’s counsel as to his past conduct, his outright denial of paternity,
his equivocation, and the reason and justification for his denying that the
child is biologically his:
‘‘[Schwartz]: There were other providers that I owed, and I refused to
pay them, and they stopped bothering me for collection because I disagreed
with them. . . .
‘‘[The Plaintiff’s Counsel]: Mr. Schwartz, isn’t it true that up until this
point you denied knowledge under oath at your deposition and in court
papers about whether you’re the father of [the child]?
‘‘[Schwartz]: I denied knowledge, but I explicitly stated that I believe that
[the child] is [my child]. That I file tax returns claiming [the child] as a
dependent, that [the child] is on my birth certificate. That in all respects,
aside from when I am under oath, that I claim that [the child is mine].
. . . And my understanding in doing this, is that I—there is—there’s nothing
wrong with—ok.
‘‘And my understanding in doing this is that there is a difference in court—
and this may be completely wrong because I’m pro se—but in court, the
standard is knowledge, not belief. Now that may not be true, and if it’s not
true, so then it doesn’t matter. So then [the child] is [mine] if knowledge is
belief. If the—if the standard is knowledge, then—then [the child] is not
[mine] or —I’m sorry—[the child is] not—it’s not that [the child] is not my
[child], I don’t know if she is my [child], I never had a paternity test. Now,
I also believe, and this may not be true, that it’s—OK to cast doubt and to
require the opposing party—to prove that [the child] is my [child], if the
standard is knowledge.
‘‘[The Plaintiff’s Counsel]: Isn’t it true that you have absolutely no evidence
that would support the notion that [the child] is not your biological [child]?
‘‘[Schwartz]: That’s correct.’’
19
Practice Book § 4-2 (b) provides in relevant part: ‘‘The signing of any
pleading . . . shall constitute a certificate that the signer has read such
document, that to the best of the signer’s knowledge, information and belief
there is good ground to support it, that it is not interposed for delay . . . .’’
Practice Book § 10-5 provides in relevant part: ‘‘Any allegation or denial
made without reasonable cause and found untrue shall subject the party
pleading the same to the payment of such reasonable expense, to be taxed
by the judicial authority, as may have been necessarily incurred by the other
party by reason of such untrue pleading . . . .’’
20
General Statutes § 52-226a provides in relevant part: ‘‘In any civil action
. . . tried to the court, and not more than fourteen days after judgment has
been rendered, the prevailing party may file a written motion requesting
the court to make a special finding to be incorporated in the judgment or
made part of the record . . . that the action or a defense to the action was
without merit and not brought or asserted in good faith. Any such finding
by the court shall be admissible in any subsequent action brought pursuant
to section 52-568.’’
21
General Statutes § 52-568 provides in relevant part: ‘‘Any person who
. . . asserts a defense to any civil action or complaint commenced and
prosecuted by another . . . (2) without probably cause, and with a mali-
cious intent unjustly to vex and trouble such other person shall pay him
treble damages.’’
22
General Statutes § 19a-681, titled ‘‘Definitions,’’ provides in relevant part:
‘‘(a) For purposes of this section: (1) ‘Detailed patient bill’ means a patient
billing statement that includes, in each line item, the hospital’s current
pricemaster code, a description of the charge and the billed amount; and
(2) ‘pricemaster’ means a detailed schedule of hospital charges. . . .’’
23
General Statutes § 42-150aa (b) provides: ‘‘If a lawsuit in which money
damages are claimed is commenced by an attorney who is not a salaried
employee of the holder of a contract or lease subject to the provisions of this
section, such holder may receive or collect attorney’s fees, if not otherwise
prohibited by law, or not more than fifteen percent of the amount of any
judgment which is entered.’’
24
General Statutes § 42-150bb provides in relevant part: ‘‘Whenever any
contract . . . entered into . . . to which a consumer is a party, provides
for the attorney’s fee of the commercial party to be paid by the consumer,
an attorney’s fee shall be awarded as a matter of law to the consumer who
successfully prosecutes or defends an action . . . based upon the contract
. . . . Except as hereinafter provided, the size of the attorney’s fee awarded
to the consumer shall be based as far as practicable upon the terms governing
the size of the fee for the commercial party. . . .’’
25
Practice Book § 11-21 provides in relevant part: ‘‘Motions for attorney’s
fees shall be filed with the trial court within thirty days following the date
on which the final judgment of the trial court was rendered. . . . Nothing
in this section shall be deemed to affect an award of attorneys’ fees assessed
as a component of damages.’’