Freeman v. A Better Way Wholesale Autos, Inc.

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APPENDIX
SHARAY FREEMAN v. A BETTER WAY
WHOLESALE AUTOS, INC.*
Superior Court, Judicial District of Hartford
File No. CV-XX-XXXXXXX-S
Memorandum filed May 3, 2018
Proceedings
Memorandum of decision on plaintiff’s motion for
supplemental attorney’s fees and costs. Motion granted
in part.
Daniel S. Blinn, for the plaintiff.
Kenneth A. Votre, for the defendant.
Opinion
HUDDLESTON, J. The plaintiff, Sharay Freeman,
seeks $65,791.24 in supplemental attorney’s fees and
costs pursuant to the Connecticut Unfair Trade Prac-
tices Act (CUTPA), General Statutes § 42-110a et seq.,
incurred in defending an appeal by the defendant, A
Better Way Wholesale Autos, Inc. The court previously
found the defendant liable under CUTPA and common-
law fraud for misleading the plaintiff about the refund-
ability of a $2500 deposit on a used car. (# 132.) The
plaintiff was awarded $2500 in compensatory damages,
$7500 in punitive damages, and, in a subsequent deci-
sion, $26,101.50 in attorney’s fees. (# 148.) The Appellate
Court affirmed the judgment, and the Supreme Court
denied the defendant’s petition for certification to
appeal. See Freeman v. A Better Way Wholesale Autos,
Inc., 174 Conn. App. 649, 166 A.3d 857, cert. denied,
327 Conn. 927, 171 A.3d 60 (2017).
The defendant objects to the motion for supplemental
attorney’s fees. (# 153.) The court heard argument on
the motion on April 3, 2018, and held an evidentiary
hearing on April 13, 2018, at which the plaintiff’s appel-
late attorney testified. For the reasons stated below,
the court awards the plaintiff reasonable supplemental
attorney’s fees of $49,980.
The plaintiff’s request for appellate attorney’s fees
is governed by General Statutes § 42-110g (d), which
provides in relevant part: ‘‘In any action brought by a
person under this section, the court may award, to the
plaintiff, in addition to the relief provided in this section,
costs and reasonable attorneys’ fees based on the work
reasonably performed by an attorney and not on the
amount of recovery. . . .’’ As courts have often
observed, ‘‘[t]he public policy underlying CUTPA is to
encourage litigants to act as private attorneys general
and to engage in bringing actions that have as their
basis unfair or deceptive trade practices. . . . In order
to encourage attorneys to accept and litigate CUTPA
cases, the legislature has provided for the award of
attorney’s fees and costs.’’ (Citation omitted; internal
quotation marks omitted.) Jacques All Trades Corp. v.
Brown, 42 Conn. App. 124, 130–31, 679 A.2d 27 (1996),
aff’d, 240 Conn. 654, 692 A.2d 809 (1997).
Although § 42-110g (d) does not expressly state that
attorney’s fees may be awarded for appellate work,
Connecticut’s courts have consistently construed both
contractual and statutory provisions for attorney’s fees
to encompass appellate attorney’s fees unless the rele-
vant language clearly indicates otherwise. See Total
Recycling Services of Connecticut, Inc. v. Connecticut
Oil Recycling Services, LLC, 308 Conn. 312, 333–38, 63
A.3d 896 (2013); id., 337 (‘‘[w]e . . . will construe an
attorney’s fee provision that is silent with respect to
appellate attorney’s fees as encompassing such fees in
the absence of contractual language to the contrary’’);
Gagne v. Vaccaro, 118 Conn. App. 367, 369–70, 984 A.2d
1084 (2009); id., 370–71 (‘‘[a]lthough [General Statutes]
§ 52-249 . . . does not specifically provide for appel-
late attorney’s fees . . . we construe the provision for
attorney’s fees in § 52-249 as extending to attorney’s
fees incurred on appeal as well as at the trial level’’
[citations omitted; internal quotation marks omitted]);
Crowther v. Gerber Garment Technology, Inc., 8 Conn.
App. 254, 271–72, 513 A.2d 144 (1986) (allowing appel-
late attorney’s fees under General Statutes § 31-72 in
civil action to collect wages).
Whether any attorney’s fees should be awarded in a
CUTPA case is a matter of discretion for the trial judge.
Steiger v. J. S. Builders, Inc., 39 Conn. App. 32, 36, 663
A.2d 432 (1995). ‘‘A court has few duties of a more
delicate nature than that of fixing counsel fees.’’ (Inter-
nal quotation marks omitted.) Krack v. Action Motors
Corp., 87 Conn. App. 687, 694, 867 A.2d 86, cert. denied,
273 Conn. 926, 871 A.2d 1031 (2005).
After the trial, this court determined that an award
of attorney’s fees was warranted in this case. The defen-
dant now argues that it would be unduly punitive to
award any additional fees for the appeal.
The court disagrees. CUTPA’s attorney’s fee provi-
sion is intended to enable private parties to obtain coun-
sel to enforce the statutory prohibition on unfair trade
practices. That purpose could be thwarted if fees are
not awarded for the successful defense of a CUTPA
judgment on appeal. In consumer cases under CUTPA,
there is often an imbalance of resources between the
consumer plaintiff and the business defendant. If statu-
tory fees were not available to such a plaintiff for an
appeal, the defendant could exhaust the plaintiff’s
resources and force the plaintiff to abandon or severely
compromise a meritorious claim. The court will there-
fore award reasonable supplemental attorney’s fees for
the appeal and for this fee proceeding.
The plaintiff was represented at trial by Daniel S.
Blinn and on appeal by Blinn and Richard F. Wareing.
In an affidavit, Blinn attested that he does not handle
appellate work on a regular basis, and his two lawyer
office lacks the resources to handle all the appeals
arising from judgments obtained against this defendant.
Blinn therefore recommended that the plaintiff engage
Wareing, an experienced appellate advocate with whom
Blinn had previously worked, as cocounsel with pri-
mary responsibility for the appeal. Wareing agreed that
he would be paid for his services only if the plaintiff
prevailed on appeal and that his fees would be limited
to the amount, if any, awarded by the court after the
appeal.
Both Blinn and Wareing submitted affidavits and bill-
ing records in support of the motion for supplemental
attorney’s fees. At the initial hearing on the motion, the
defendant did not object to the court’s consideration
of Blinn’s affidavit and billing record but did object to
Wareing’s affidavit as hearsay. The court subsequently
held a hearing at which Wareing testified and was sub-
jected to cross-examination. His billing record was sub-
mitted as an exhibit at the hearing.
Although the defendant does not argue that the plain-
tiff unreasonably engaged appellate counsel, the defen-
dant does challenge the amount requested. More
specifically, it argues that (1) Wareing’s requested
hourly rate is too high, (2) the amount requested is
excessive and unreasonable in light of the actual dam-
ages of $10,000, (3) the plaintiff should not receive
attorney’s fees for her opposition to the petition for
certification, and (4) some of the billing entries are
questionable. Before deciding these specific claims, the
court addresses the standard that applies to awards of
attorney’s fees under CUTPA.
‘‘[T]he initial estimate of a reasonable attorney’s fee
is properly calculated by multiplying the number of
hours reasonably expended on the litigation times a
reasonable hourly rate.’’ (Internal quotation marks
omitted.) Carrillo v. Goldberg, 141 Conn. App. 299, 317,
61 A.3d 1164 (2013). ‘‘The courts may then adjust this
lodestar calculation by other factors [outlined in John-
son v. Georgia Highway Express, Inc., 488 F.2d 714,
717–19 (5th Cir. 1974)].’’ (Internal quotation marks omit-
ted.) Carrillo v. Goldberg, supra, 317; see Steiger v. J.
S. Builders, Inc., supra, 39 Conn. App. 35–39 (adopting
Johnson analysis). ‘‘The Johnson court set forth twelve
factors for determining the reasonableness of an attor-
ney’s fee award, and they are: the time and labor
required; the novelty and difficulty of the questions; the
skill requisite to perform the legal services properly;
the preclusion of other employment by the attorney
due to acceptance of the case; the customary fee;
whether the fee is fixed or contingent; time limitations
imposed by the client or the circumstances; the amount
involved and the results obtained; the experience, repu-
tation, and ability of the attorneys; the ‘undesirability’
of the case; the nature and length of the professional
relationship with the client; and awards in similar
cases.’’ Laudano v. New Haven, 58 Conn. App. 819, 823
n.9, 755 A.2d 907 (2000). Although courts often describe
the Johnson-Steiger factors as the basis for an ‘‘adjust-
ment’’ of the lodestar, as a practical matter, most of
these factors ‘‘usually are subsumed within the initial
calculation of hours reasonably expended, at a reason-
able hourly rate.’’ Hensley v. Eckerhart, 461 U.S. 424,
434 n.9, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983).
In applying the Johnson-Steiger factors, the court
should bear in mind the public policy underlying the
statute that provides for the fee award at issue. See
Costanzo v. Mulshine, 94 Conn. App. 655, 664–65, 893
A.2d 905, cert. denied, 279 Conn. 911, 902 A.2d 1070
(2006). A trial court abuses its discretion by ‘‘seizing
from the full panoply of relevant factors merely one
factor to the exclusion and disregard of the others.’’
Rodriguez v. Ancona, 88 Conn. App. 193, 203, 868 A.2d
807 (2005).
Turning to the task of determining reasonable supple-
mental fees in this case, the court considers the evi-
dence of Blinn’s affidavit and billing records, and
Wareing’s testimony and billing records. The court also
takes judicial notice of the appellate pleadings.1 This
includes motions, briefs, appendices, and the petition
for certification and opposition thereto, which this
court has fully reviewed to determine the reasonable-
ness of the time expended in discrete tasks. The court
also considers its own knowledge of appellate practice
and procedure and fees customarily charged in Con-
necticut.
The first step in determining reasonable attorney’s
fees is deciding upon a reasonable hourly rate for the
lawyers involved. Blinn requests an hourly rate of $375,
the rate the court previously approved for his work.
The defendant does not challenge this rate. The court
finds that $375 is an appropriate hourly rate for Blinn,
an experienced and skillful consumer advocate, for the
reasons stated in the court’s decision of March 18, 2016.
Wareing also requests an hourly rate of $375. If the
only factors to be considered were his skill, experience,
and reputation, that rate would be warranted. He has
considerable appellate experience and is respected as
an appellate lawyer, reflected in the fact that he has
served on the faculty of the Connecticut Bar Associa-
tion’s Appellate Advocacy Institute. The hourly rate of
$375 is within the range customarily charged by attor-
neys in Connecticut and is what Wareing charged at a
previous firm, which he left in 2013. But Wareing testi-
fied that his usual hourly rate now is $225 to $275,
depending on the nature of the matter and the relation-
ship with the client. He explained, on cross-examina-
tion, that he and his current partners made a business
decision to charge fees that were lower than rates they
had previously charged at another firm. Their purpose
in doing so was to avoid disputes with clients over fees,
to avoid having to write off time to satisfy clients, and
to avoid having to ‘‘chase’’ clients for fees. He testified
that with the lower rates, his firm now requires a sub-
stantial retainer, and most clients pay their bills within
thirty to sixty days.
From Wareing’s testimony, the court infers that
although higher hourly rates may be charged in the
marketplace, such higher hourly rates also lead to dis-
putes with clients about bills and result in some bills
being reduced to maintain client relationships. The
court concludes that the fees Wareing currently charges
to clients—from $225 to $275 an hour—represent a
reasonable range of hourly rates for his services in
this case.
The plaintiff argues that Wareing should receive $375
per hour because his fee in this case was both contin-
gent and likely to be delayed. In Wareing’s usual prac-
tice, at the lower rates he now charges, his fees are
generally fixed, not contingent, and he requires both a
substantial retainer and prompt payment. In this case,
he agreed that he would look solely to an award of
statutory attorney’s fees. In so doing, he assumed the
risk of losing on appeal, the risk of the court denying
or reducing his requested fees, and the risk that any
fees awarded might be long delayed. The court agrees
that the contingent nature of his fees and the delay in
recovering them warrant consideration, but it is not
persuaded that those factors justify an hourly rate that
is $100 to $150 more than the rate he charges to paying
clients. In light of Wareing’s testimony and the court’s
own knowledge of the wide range of reasonable rates
and billing arrangements in this marketplace, the court
concludes that an hourly rate of $275, which is at the
upper end of Wareing’s current rates, is a reasonable
rate for his work on the appeal in this case.
Both Blinn and Wareing have paralegals who per-
formed some tasks related to the appeal. The plaintiff
is requesting the rate of $125 per hour for Blinn’s parale-
gal, Lori Miner, the rate of $100 per hour for Wareing’s
paralegal, Josephine Salafia, who has twenty years
experience as a litigation paralegal, and the rate of $40
per hour for Traci Parent, a legal assistant at Wareing’s
firm since September, 2014. The court finds these rates
to be reasonable based on Blinn’s affidavit, Wareing’s
testimony, and the court’s own knowledge of fees cus-
tomarily charged for paralegals and legal assistants. The
defendant has not contested the rates sought for these
individuals, but has contended that some of their time
was not reasonably billed. The court will address those
issues in relation to the various tasks challenged.
The court next examines the time reasonably spent
on the appeal. The defendant does not challenge any
of the time entries by Blinn. Blinn exercised billing
judgment to delete charges for duplicative services,
such as his attendance at oral argument. The charges
he did request are for tasks that were reasonable. He
attended the preargument conference, kept the plaintiff
apprised of the status of the appeal, consulted with
Wareing briefly as issues arose during the appeal,
reviewed Wareing’s drafts of motions, the brief, and
objections, mooted Wareing for oral argument, and pre-
pared and presented the pending attorney’s fee motion.
Based on his fee affidavit and time records, the court
concludes that Blinn reasonably spent 24.5 hours on
the appeal and the fee motion. In addition, according
to Wareing’s testimony, both Wareing and Blinn spent
five hours preparing for and attending the evidentiary
fee hearing on April 13, 2018. The court finds that the
lodestar for Blinn’s attorney’s fees is $11,062.50, based
on 29.5 hours at $375 per hour.
The defendant argues that the time spent by Wareing
in motion practice, in preparing the brief, and in prepar-
ing for argument was excessive. Wareing’s billing
record indicates that he spent eleven hours on motions
and objections related to the defendant’s failure to file
its brief on time, 7.5 hours reviewing the trial court
record, including the transcript and the court’s deci-
sions, 86.3 hours in legal research and writing the appel-
late brief, 22.8 hours preparing for and attending oral
argument, 15.7 hours responding to the defendant’s peti-
tion for certification, and 2.8 hours preparing his fee
affidavit. In addition, he spent five hours preparing for
and attending the hearing on this fee motion. His total
time spent on the appeal and fee motion equaled
151.1 hours.
The time spent on the appellate motion practice
requires some context. The defendant’s brief was due
on April 20, 2016. On that date, the defendant’s attorney
moved for an extension of seven days, to April 27, 2016,
which was granted. That deadline came and went. The
plaintiff’s attorneys noted that the defendant’s brief had
not been filed. On July 7, 2016, the plaintiff moved to
dismiss the appeal for failure to file a timely brief. In
response, the defendant’s counsel filed two improper
motions to extend time, which were summarily denied
by the appellate clerk, and subsequently filed the proper
motion, a motion for leave to file a late brief.2 The
plaintiff’s attorneys objected to the motion. The court
issued a nisi order, stating that the appeal would be
dismissed if the defendant’s brief was not filed by
August 2, 2016. On August 2, 2016, the defendant filed
a brief and appendix that was rejected by the appellate
clerk for failure to number the pages of the appendix
and failure to include a judgment file. The defendant
then filed a motion for extension of time to file a cor-
rected brief. The appellate clerk issued a second nisi
order, stating that the appeal would be dismissed unless
a complying appellant’s brief and appendix were filed
by August 17, 2016. The defendant filed a complying
brief and appendix on August 16, 2016.
Each of the defendant’s failures to comply with court
rules and deadlines required the plaintiff’s attorneys to
consider the defendant’s procedural misstep and decide
whether and how to respond to it. The plaintiff’s judg-
ment was automatically stayed by Practice Book § 61-
11 (a), and she could not enforce the judgment until
the appeal was concluded. The plaintiff’s attorneys rea-
sonably moved to dismiss the appeal when the defen-
dant’s brief was more than two months late. Each
motion subsequently filed by the defendant in an
attempt to cure previous defects required the plaintiff’s
attorneys to read the motion and consider whether to
object. The plaintiff’s attorneys reasonably decided to
object to the defendant’s motion to file a late brief to
rebut the defendant’s assertion, in that motion, that the
lapse was caused by a departing associate who had
failed to calendar the deadline correctly. As the plaintiff
pointed out in the objection, the defendant’s lead attor-
ney had himself signed the motion for extension of time
that requested the April 27 due date. The plaintiff also
argued that the defendant’s excuse represented gross
negligence, not good cause for relief, because the defen-
dant had offered the same excuse for missed deadlines
in at least five other cases in 2016. Although ultimately
unsuccessful, these were not frivolous arguments, and
they had the effect of moving the appeal forward.
In total, Wareing spent eleven hours drafting the vari-
ous motions and objections related to the defendant’s
failure to file a timely brief. For the objection to the
motion to file a late brief, Blinn’s paralegal, Miner, also
spent an hour on a footnote that documented the five
other recent cases in which the defendant had attrib-
uted a missed deadline to a departing associate’s failure
to calendar matters properly. The motion to dismiss is
only two pages long and is not complicated. Similarly,
the objection to the motion to file a late brief is only
three pages long, and the footnote described above is a
substantial portion of it. The court will reduce Wareing’s
time on this motion practice from eleven hours to four
hours and Miner’s time from one hour to a half hour
for drafting the footnote.
The time Wareing spent reviewing the trial court
record was reasonable, and the defendant does not
argue otherwise. The defendant does argue that the
time spent drafting the brief was unreasonable, claiming
that no one would reasonably spend the time Wareing
spent on the brief for a case with damages of only
$10,000. The court credits Wareing’s testimony to the
contrary. He testified that some of his commercial cli-
ents are willing to spend substantial sums on appeals,
even when the amount of money at issue is small, if
the legal principle at issue is important to them. The
court further observes that the defendant in this case
was willing to incur its own attorney’s fees and to risk
that it would be required to pay the plaintiff’s attorneys
as well, even though the amount at issue when the
defendant filed its appeal was only $10,000.3
Wareing credibly testified that the time required to
research and draft the appellate brief was driven largely
by the fact that the defendant raised eight issues on
appeal and claimed that there was ‘‘no evidence’’ to
support the trial court’s findings. Wareing had to ana-
lyze each of those eight issues, determine the appro-
priate standard of appellate review, research the
relevant law, review the trial record to marshal the
evidence that supported the court’s findings, and pro-
vide a legal analysis of each issue. As Wareing testified,
‘‘the more arguments an appellant makes, the more
work the appellee has to do to swat back those
arguments.’’4
Moreover, our appellate courts frequently remind
appellate litigators that ‘‘[w]riting a compelling legal
argument is a painstaking, time-consuming task. Good
legal analysis is premised on knowing the controlling
rules of law. An effective appellate advocate must apply
the rules of law to the facts at hand by applying or
distinguishing existing legal precedent. . . . To write
a good brief and to comply with the rules of practice,
counsel must state the rules of law, [and] provide cita-
tions to legal authority that support the claims made
. . . .’’ (Internal quotation marks omitted.) State v.
Buhl, 321 Conn. 688, 729, 138 A.3d 868 (2016); see also
Desmond v. Yale-New Haven Hospital, Inc., 181 Conn.
App. 201, 212–13, 185 A.3d 665 (quoting Buhl), cert.
denied, 330 Conn. 902, 191 A.3d 1001 (2018). It was not
inherently excessive to spend 86.3 hours performing
the ‘‘painstaking, time-consuming task’’ of writing per-
suasive arguments for the eight appellate issues raised
by the defendant. It averaged only 10.8 hours per issue.
Although the court does not find the time claimed
by Wareing to be inherently excessive, there is neverthe-
less a discrepancy between Wareing’s testimony and
his time records. Wareing testified that he spent ‘‘just
north of’’ two hours per page in drafting the brief.
Including the counterstatement of the issues and the
body of the brief, the brief was just over thirty-four
pages. Based on Wareing’s testimony, writing the brief
would require slightly more than sixty-eight hours, but
Wareing’s billing records indicate that he actually spent
86.3 hours working on the brief. On cross-examination,
he was asked if he would be surprised if his records
showed that he spent 100 hours on the brief, and he
said that he would be very surprised. The court infers
from Wareing’s testimony that the time spent on the
brief was somewhat greater than he remembered and
somewhat greater than he would ordinarily expect to
spend. The court further notes that some of his time
entries are vague. Taking into account these facts, the
court finds that Wareing reasonably spent eighty hours
preparing the brief.
Oral argument in the appeal was originally scheduled
for March 20, 2017. Between March 10 and March 17,
Wareing reasonably spent about ten hours preparing
for oral argument, including time spent with Blinn in
mooting.5 Two unforeseen circumstances then
increased the time attributed to oral argument. First,
the Appellate Court issued an order directing the parties
to be prepared to address whether the court should
dismiss the portion of the appeal challenging the award
of attorney’s fees because the plaintiff had not amended
his appeal, which was filed before the attorney’s fee
decision was issued by this court, to include an appeal
of the attorney’s fee decision. This was an issue that
all counsel in the case had overlooked, and Wareing
spent about three hours on March 19 preparing to
address it. Then, on March 20, 2017, while the parties
were waiting to present their arguments, the Appellate
Court’s recording system malfunctioned. The attorneys
had to wait while attempts were made to get it working,
but eventually the argument was rescheduled for March
28, 2017. Wareing spent 2.7 hours on March 27,
refreshing his preparation, and 3.6 hours on March 28,
reviewing his notes, attending court, and presenting his
argument. The defendant has objected to the time spent
on March 27 and 28, claiming that Wareing unreason-
ably spent an additional 6.3 hours preparing for an argu-
ment that he had been prepared to give a week earlier.
The court disagrees. The time spent on March 27 to
refresh his preparation was reasonable, and the time
spent on March 28 was primarily spent attending court,
waiting for the case to be called, and presenting the
argument. In the circumstances of this case, where an
additional issue was raised by the court and where the
argument had to be rescheduled through no fault of
any party, the time spent preparing for oral argument
was reasonable.
After the Appellate Court issued its decision,
affirming the judgment on the merits and dismissing
the appeal as to the attorney’s fee issue, the defendant
filed a petition for certification to the Supreme Court.
Wareing spent 15.7 hours preparing an opposition to the
petition. The defendant did not challenge the amount
of time spent opposing the petition, but it argued that
time spent on the petition could not properly be consid-
ered because the Supreme Court had not decided the
petition when the plaintiff filed the motion for supple-
mental fees. That argument is unavailing now because
the Supreme Court denied certification while the fee
motion was pending. The court finds that the time spent
drafting the opposition to the petition was reasonable.
Finally, Wareing spent 2.8 hours preparing his fee
affidavit. In addition, he spent five hours on April 13,
2018, preparing for and attending the hearing on the
fee motion. The defendant has not challenged that time,
and the court finds that it was reasonable.
Adding up all the components of the appellate pro-
cess, the court finds that Wareing reasonably expended
137.8 hours in defending the judgment on appeal and
pursuing this motion. The lodestar for Wareing is calcu-
lated to be $37,895.
Paralegals in Blinn’s office and in Wareing’s office
assisted in posttrial work, including the appeal and the
fee motion. Blinn’s paralegal, Miner, drafted a bill of
costs, part of the objection to the motion for leave to
file a late brief, and portions of the fee motion. Such
tasks are reasonably done by a paralegal. After exclud-
ing a half hour for the footnote, the court finds that
Miner reasonably spent 4.5 hours on tasks requiring
a paralegal’s experience and knowledge. Her lodestar
figure is $562.50.
Wareing claims $200 in fees for two hours spent by his
paralegal, Salafia, who retrieved and analyzed pleadings
filed in the Appellate Court and drafted correspondence
to the court regarding oral argument dates. The defen-
dant has not challenged any of Salafia’s time. The court
finds that Salafia’s lodestar is $200.
Wareing also claims $260 for 6.5 hours spent by his
legal assistant, Traci Parent, in preparing the appellee’s
appendix. The defendant challenges this time as spent
on ministerial tasks. The court disagrees. Practice Book
§§ 67-2, 67-4, 67-5 and 67-8 prescribe specific standards
for the format and contents of an appendix. Failure to
follow the rules can result in rejection of the appendix.6
Under Practice Book § 67-8 (c), the appellee is required
to analyze the appellant’s appendix and to provide any
required documents that the appellant has omitted from
its appendix. The appellee may also include ‘‘any other
portions of the proceedings below that the appellee
deems necessary for the proper presentation of the
issues on appeal.’’ Practice Book § 67-8 (c). Wareing
testified that the defendant’s appendix did not include
any of the transcripts and other portions of the record
that Wareing deemed necessary to counter the defen-
dant’s argument that no evidence supported the trial
court’s judgment. However, Practice Book § 67-8 (b)
(2) cautions that ‘‘[t]o reproduce a full transcript or
lengthy exhibit when an excerpt would suffice is a mis-
use of an appendix.’’ The preparation of an appendix
thus requires the exercise of judgment to include
enough, but not too much, of the trial court record. It
is not unreasonable to assign the task of preparing
the appendix to a legal assistant working under the
supervision and review of the appellate attorney.7 The
court finds that Parent’s lodestar is $260.
Combining the lodestars for all the timekeepers, the
total lodestar for the appeal and this fee motion is
$49,980. The court now considers the Johnson-Steiger
factors to determine whether that lodestar should be
adjusted.
The court has already addressed, in its analysis of
the reasonable lodestar, several of the Johnson-Steiger
factors, including the time and labor required, the cus-
tomary fee for similar work in the community, whether
the fee is fixed or contingent, and the experience, repu-
tation, and ability of the attorneys. No adjustment is
required because these factors are subsumed within
the lodestar. See Hensley v. Eckerhart, supra, 461 U.S.
434 n.9.
As to the novelty or difficulty of the questions, Ware-
ing testified that the appeal was ‘‘medium’’ in complex-
ity. The defendant argues that the court previously
found that the issues presented at trial were not novel or
difficult, arguing that the appeal is no more complicated
than the trial. Wareing testified, however, that the
appeal presented challenges both because of the num-
ber of issues presented and because of inconsistencies
in the defendant’s appellate arguments that he had to
address. No lodestar adjustment is needed for an appeal
of average complexity.
As to the skill required to perform the legal service
properly, the court finds that appellate practice requires
knowledge of and attention to appellate rules and proce-
dure in addition to knowledge of the substantive areas
of law involved. Blinn appropriately sought to
cocounsel with Wareing because Wareing had more
extensive appellate experience than Blinn and because
appeals are time-consuming endeavors. No adjustment
is needed for this factor because it, too, is subsumed
within the lodestar analysis.
There was little evidence on the preclusion of other
employment, other than the obvious fact that there are
only so many hours in a day and time spent on one
client’s case is time not spent on other clients’ cases.
Nor was there evidence of any time limitations imposed
by the client or the circumstances. As to the nature and
length of the professional relationship with the client,
there was no evidence that Blinn had represented the
plaintiff in other cases. Wareing testified that he had
never met the plaintiff, but communicated with her
through Blinn. No adjustment is warranted on the basis
of these factors.
The defendant focuses on ‘‘the amount involved and
the results obtained,’’ arguing that the fees requested
are so disproportionate to the damages awarded that
a substantial reduction is required. The defendant has
made this argument unsuccessfully earlier in this case
and in other cases. See Franco v. A Better Way Whole-
sale Autos, Inc., Civil Action No. 3:14-cv-00422 (VLB),
2016 WL 3064051, *3 (D. Conn. May 31, 2016) (‘‘Defen-
dants also argue that the attorney’s fees are dispropor-
tionate to the damages awarded. This objection lacks
an arguable basis in law’’), aff’d, 690 Fed. Appx. 741
(2d Cir. 2017). Other than a perfunctory citation to
Steiger, the defendant fails to cite any authority in sup-
port of its claim that the fee award should be limited
in proportion to the award of damages. The failure to
brief an argument adequately is, in itself, a reason to
reject the argument. See State v. Buhl, supra, 321 Conn.
724–29 (discussing qualities of adequate briefing); see
also A Better Way Wholesale Autos, Inc. v. Rodriguez,
176 Conn. App. 392, 407, 169 A.3d 292 (2017) (declining
to review attorney’s fee issue because of inadequate
briefing), cert. denied, 327 Conn. 992, 175 A.3d 1248
(2018).
The defendant ignores the extensive body of law gov-
erning attorney’s fee awards. First, it fails to address
the text of CUTPA, which expressly provides that a fee
award is to be ‘‘based on the work reasonably per-
formed by an attorney and not on the amount of recov-
ery.’’ General Statutes § 42-110g (d). It also fails to
address the many cases in which our appellate courts
have rejected a proportionality argument. For instance,
in Simms v. Chaisson, 277 Conn. 319, 890 A.2d 548
(2006), the Supreme Court rejected a proportionality
argument and affirmed an attorney’s fee award of
$65,286.80 pursuant to General Statutes § 52-571c8 in a
case where two plaintiffs had been awarded only nomi-
nal damages of $10 each under that statute. In that case,
which involved racial intimidation by the defendants,
the Supreme Court determined that ‘‘there is a strong
public policy reason for giving courts discretion to
award substantial attorney’s fees when the plaintiff’s
claim for damages and recovery is not large. Courts
have recognized that the cumulative effect of small
violations of one’s civil rights may not be minimal to
society as a whole.’’ Id., 334. This principle has been
applied to support substantial awards of attorney’s fees
under other statutes to vindicate the purpose underlying
the particular statute. For instance, in Costanzo v. Muls-
hine, supra, 94 Conn. App. 663–64, the Appellate Court
held that the trial court had abused its discretion in
awarding only $1500 in attorney’s fees pursuant to Gen-
eral Statutes § 52-251a without determining whether the
requested fees of $15,000 were reasonable. The trial
court had reduced the requested fees in part because
the damages awarded were only $1650. The Appellate
Court concluded that the court had erred in its ‘‘consid-
eration of the disputed amount as a gauge for the proper
amount of attorney’s fees’’; id., 663; and that it had
failed to consider the policy underlying § 52-251a, which
allows a prevailing plaintiff to recover attorney’s fees
if a defendant transfers a matter from the small claims
division to the regular civil docket in Superior Court.
The Appellate Court commented that the attorney’s fee
provision served to deter defendants from ‘‘turning a
relatively clear-cut case into a pitched legal battle’’;
(internal quotation marks omitted) id., 665; and to
‘‘reward those attorneys who represent small claims
plaintiffs even though the monetary value of the repre-
sentation may be relatively insignificant for the time
and effort required.’’ Id., 665 n.7. In Krack v. Action
Motors Corp., supra, 87 Conn. App. 689, the Appellate
Court affirmed an award of attorney’s fees under § 52-
251a that was ten times the amount originally in dispute
in the small claims division. The rationale applies
equally to CUTPA cases. The availability of statutory
attorney’s fees under CUTPA serves both to deter unfair
trade practices and to compensate attorneys for taking
on small cases to enforce the public policy of protecting
consumers from unfair and deceptive conduct.
Moreover, the court considers the ‘‘amount at issue’’
in conjunction with the ‘‘results obtained.’’ The plaintiff
prevailed on all issues on appeal and successfully
opposed a further appeal to the Supreme Court. The
court also considers the economic ‘‘undesirability’’ of
a case involving such a small monetary claim. Few
lawyers are willing to take on such cases because pay-
ment for them is uncertain and is likely to be long
delayed. The court finds that the success achieved and
the economic undesirability of the case counterbalance
the factor of the ‘‘amount involved.’’ No adjustment to
the lodestar is warranted on these factors.
The parties did not provide evidence about awards
in similar cases. The court observes that in a somewhat
similar case, Creative Masonry & Chimney, LLC v.
Johnson, Superior Court, judicial district of New Brit-
ain, Docket No. CV-XX-XXXXXXX, 2013 WL 6131685 (Octo-
ber 23, 2013) (Swienton, J.), the court awarded
appellate attorney’s fees of $46,888,48. In the proceed-
ings leading up to that decision, a jury had awarded the
plaintiff $7700 in compensatory damages under CUTPA,
and the trial court had awarded $23,100 in punitive
damages and $56,380 in trial attorney’s fees, as well as
costs and prejudgment interest. Creative Masonry &
Chimney, LLC v. Johnson, 142 Conn. App. 135, 138, 64
A.3d 359, cert. denied, 309 Conn. 903, 68 A.3d 658 (2013).
As in this case, the defendant in that case appealed;
the Appellate Court affirmed; and the Supreme Court
denied certification. To the extent that awards in similar
cases are a factor, no adjustment to the lodestar is war-
ranted.
Finally, the court addresses the plaintiff’s request for
costs. The plaintiff seeks $393.74 for Blinn, consisting
of travel expenses for the preargument conference and
transcript costs, and $337.50 for Wareing for copying
the appeal brief and appendix. Costs on appeal are
governed by General Statutes § 52-257 (d) and Practice
Book § 71-2, which requires a bill of costs to be filed
with the appellate clerk. The Appellate Court has held
that nontaxable costs are not available under CUTPA.
See Taylor v. King, 121 Conn. App. 105, 133–35, 994
A.2d 330 (2010) (no statutory authority for expert wit-
ness fees under CUTPA other than fees taxable under
General Statutes § 52-260); Metcoff v. NCT Group, Inc.,
52 Conn. Supp. 363, 378–79, 50 A.3d 1004 (2011) (non-
taxable costs not available under CUTPA), aff’d, 137
Conn. App. 578, 49 A.3d 282, cert. denied, 307 Conn.
924, 55 A.3d 566 (2012). Several trial court decisions
have reasonably questioned whether CUTPA should be
construed, as a remedial statute, to include nontaxable
costs. See Metcoff v. NCT Group, Inc., supra, 379 (col-
lecting cases). This court is nevertheless bound by the
decisions of the Appellate Court.
In summary, the plaintiff is awarded attorney’s fees
of $49,980 for the time reasonably expended by her
attorneys on appeal and on the fee motion. The request
for expenses is denied.
* Affirmed. Freeman v. A Better Way Wholesale Autos, Inc., 191 Conn.
App. , A.3d (2019).
1
At the hearing on April 13, 2018, the court advised the parties that it
intended to take judicial notice of the appellate pleadings. The defendant
objected on the ground of relevance, asserting that consideration of the
appellate briefs would lead to this court’s consideration of the merits of the
arguments made to the Appellate Court. The court overruled the defendant’s
objection. In deciding an attorney’s fee motion, the court is required to
consider the time and labor required, the novelty and difficulty of the ques-
tions involved, and the skill required to perform the legal service properly,
among other factors. The pleadings in the Appellate Court and Supreme
Court are directly relevant to those factors.
2
Practice Book § 66-1 governs appellate motions for extension of time.
Practice Book § 66-1 (c) authorizes the appellate clerk to grant or deny
motions for extension of time ‘‘promptly upon their filing.’’ Practice Book
§ 66-1 (e) provides in relevant part that ‘‘[n]o motion under this rule shall
be granted unless it is filed before the time sought to be extended by such
motion has expired.’’ If a deadline has been missed, as was the case here,
Practice Book § 60-2 (5) authorizes the court having jurisdiction over the
appeal to grant a motion for leave to file a late brief ‘‘for good cause shown.’’
3
The court had not yet heard the attorney’s fee motion when the defendant
filed its appeal on October 30, 2015.
4
Both state and federal appellate courts have frequently advised appellants
to limit the number of issues raised on appeal to one, two, or three issues.
See, e.g., State v. Pelletier, 209 Conn. 564, 566–67, 552 A.2d 805 (1989) (a
‘‘torrent of claimed error . . . serves neither the ends of justice nor the
defendant’s own purposes as possibly meritorious issues are obscured by
the sheer number of claims’’); Mozell v. Commissioner of Correction, 87
Conn. App. 560, 563, 867 A.2d 51 (‘‘[e]xperienced advocates since time
beyond memory have emphasized the importance of winnowing out weaker
arguments on appeal and focusing on one central issue if possible’’ [internal
quotation marks omitted]), cert. denied, 273 Conn. 934, 875 A.2d 543 (2005);
see also Jones v. Barnes, 463 U.S. 745, 752, 103 S. Ct. 3308, 77 L. Ed. 2d
987 (1983) (‘‘multiplying assignments of error will dilute and weaken a good
case and will not save a bad one’’ [internal quotation marks omitted]).
5
A ‘‘mooting,’’ or ‘‘moot court,’’ is a ‘‘practice session for an appellate
argument in which a lawyer presents the argument to other lawyers, who
first act as judges by asking questions and who later provide criticism on
the argument.’’ Black’s Law Dictionary (8th Ed. 2004) p. 1029. ‘‘[A]n appellate
advocate who does not participate in a moot court before oral argument is
like an actor who skips dress rehearsal or a quarterback who sits out the
preseason.’’ (Internal quotation marks omitted.) D. Knibb, Federal Court of
Appeals Manual (6th Ed. 2019) § 33:11.
6
In fact, the defendant’s brief and appendix were rejected because the
defendant’s appendix was not properly paginated and did not include the
judgment file. See Practice Book §§ 67-2 (c) and 67-8 (b) (1).
7
Wareing reasonably spent 1.6 hours reviewing the appendix. This was
included in the court’s analysis of the time spent preparing the brief.
8
Section 52-571c (a) authorizes a civil action for damages resulting from
intimidation based on bigotry or bias. Subsection (b) of that section requires
the court to award treble damages and permits it to award, in its discretion,
a reasonable attorney’s fee.