Sclafani Properties, LLC v. Sport-N-Life Distributing, LLC

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SCLAFANI PROPERTIES, LLC v. SPORT-N-LIFE
DISTRIBUTING, LLC, ET AL.
(AC 40066)
Prescott, Bright and Bishop, Js.
Syllabus
The plaintiff sought to recover damages from the defendants for breach of
a commercial lease, and the matter was referred for a hearing to an
attorney trial referee, who recommended judgment in favor of the plain-
tiff. In her report, the referee noted that the plaintiff had offered itemized
exhibits into evidence and testimony that the defendants had failed
to make certain rental payments, to pay real estate taxes and hazard
insurance premiums. The referee, however, concluded that the plaintiff
failed to provide evidence regarding the real estate taxes or insurance
premiums. The plaintiff filed an objection to the referee’s report, which
the trial court denied, and, thereafter, the court rendered judgment for
the plaintiff in accordance with the referee’s report. Subsequently, the
plaintiff filed a motion for attorney’s fees, in which it sought $27,904.12.
The court granted the motion but awarded the plaintiff only $6391.63,
and the plaintiff appealed to this court. Held:
1. The trial court improperly accepted the attorney trial referee’s findings
of fact with respect to the unpaid real estate taxes and failed to include
in its judgment an amount for unpaid real estate taxes; the record clearly
reflected both testimonial and documentary evidence that supported
the plaintiff’s claim that the defendants owed unpaid real estate taxes.
2. The trial court abused its discretion in determining its award of attorney’s
fees on the basis of the amount of damages awarded to the plaintiff:
using the amount in controversy in determining a reasonable award of
attorney’s fees is improper and the court indicated in its articulation
that its award of attorney’s fees was linked to the amount of damages
awarded to the plaintiff, and, accordingly a new hearing to determine
such fees was ordered.
Argued March 9—officially released June 23, 2020
Procedural History
Action to recover damages for breach of a lease, and
for other relief, brought to the Superior Court in the
judicial district of Stamford-Norwalk, Housing Session,
where the matter was referred to an attorney trial ref-
eree, who filed a report recommending judgment in
favor of the plaintiff; thereafter, the court, Rodriguez,
J., denied the plaintiff’s objection to the acceptance
of the report and rendered judgment for the plaintiff;
subsequently, the court granted in part the plaintiff’s
motion for attorney’s fees, from which the plaintiff
appealed to this court. Affirmed in part; reversed in
part; further proceedings.
Peter V. Lathouris, with whom were Victor Andreou
and, on the brief, Michael P. Longo, Jr., for the appel-
lant (plaintiff).
Mario L. DeMarco, for the appellees (defendants).
Opinion
BISHOP, J. The plaintiff, Sclafani Properties, LLC,
appeals from the judgment of the trial court awarding
it damages and attorney’s fees for the failure of the
defendants, Sport-N-Life Distributing, LLC (lessee), and
its president, Gilbert Beck (guarantor),1 to pay amounts
due to the plaintiff under a commercial lease for prop-
erty located at 482 Glenbrook Road in Stamford (prop-
erty). The plaintiff claims that the court (1) erred when
it failed to include in its judgment for the plaintiff an
amount for unpaid real estate taxes and (2) abused its
discretion in awarding only $6391.63 in attorney’s fees.
We reverse in part the judgment and remand the matter
to the trial court.
The record reflects the following undisputed facts
and procedural history. On December 12, 2003, the
plaintiff, as the landlord, and the defendants, as the
tenant and guarantor respectively, entered into a writ-
ten commercial lease (lease) for the property. The lease
was modified by agreement on January 20, 2012, and
the rent was set to $8500 per month beginning February
1, 2012. The lease also required the defendants to pay
all real estate taxes and to keep the property prop-
erly insured.
During the term of the lease, as modified, the lessee
defaulted on its obligations under the lease. Thereafter,
on September 9, 2013, the plaintiff brought a complaint2
against the lessee and the guarantor alleging, among
other things, that the lessee had breached the lease by
failing to make payments as required by the lease. The
plaintiff sought payment of those amounts and reason-
able attorney’s fees as provided for in the lease. The
plaintiff also sought a prejudgment remedy in the
amount of $75,000. Its application for a prejudgment
remedy was supported by the affidavit of Bruce Scla-
fani, the plaintiff’s managing member. Sclafani averred
that the defendants owed $17,000 for the unpaid July
and August rent, $33,934.33 in unpaid real estate taxes,
and $2266 in unpaid insurance premiums. Subsequently,
the court granted a stipulated prejudgment remedy in
the amount of $75,000. Once the pleadings were closed,
the matter was referred by the trial court to an attorney
trial referee for a hearing and report pursuant to the
provisions of Practice Book § 19-2a. Thereafter, the
attorney trial referee conducted an evidentiary hearing
during which testimony was taken and documents were
admitted into evidence. On February 26, 2016, the attor-
ney trial referee filed her report pursuant to Practice
Book § 19-8.
In her report, the attorney trial referee noted that the
plaintiff had offered testimony that the defendants had
failed to pay rent from August, 2013, through February,
2014, that the defendants had failed to pay the real
estate taxes due in July, 2012, and January and July,
2013, in the amount of $33,934.33, and had failed to pay
hazard insurance premiums in the amount of $2266.
She noted, as well, that the plaintiff had testified that
the defendants had caused damage to the property in
the amount of $30,785.74. The defendants disputed that
they had caused any damage to the property, but did
not dispute the plaintiff’s evidence of the unpaid taxes.
Having acknowledged the plaintiff’s testimony that the
defendants failed to pay the real estate taxes amounting
to $33,934.33 and hazard insurance premiums in the
stated amount, the attorney trial referee nevertheless
concluded in her report that the plaintiff had failed to
provide any evidence regarding either the real estate
taxes or insurance premiums.
The attorney trial referee recommended judgment
enter for the plaintiff in the form of $51,000 for rent, less
the security deposit of $15,000; $5535.74 for damages
to the property; interest in the amount of $543.90; and
taxable costs of the action; and she recommended that
the court issue an award of attorney’s fees in favor of
the plaintiff.
Following the issuance of the report, the plaintiff filed
an objection to the report and the entry of judgment
in accordance with the attorney trial referee’s recom-
mendations. Specifically, the plaintiff alleged that the
attorney trial referee erroneously had concluded that
the plaintiff had failed to adduce evidence of the defen-
dants’ failure to pay real estate taxes or hazard insur-
ance premiums as the transcript of the hearing, as well
as documentary evidence submitted during the hearing,
provided evidence contrary to the report. On July 28,
2016, the court denied the objection. The court rendered
‘‘[j]udgment for the plaintiff in the amount of $41,535.74
in damages3 and $543.90 in interests and costs in the
amount of $531.25, for a total of $42,610.89.’’ Notably,
the judgment included no provisions for real estate
taxes or insurance payments.
On August 9, 2016, the plaintiff filed a motion for
attorney’s fees pursuant to Practice Book § 11-21 in the
amount of $26,604.12.4 With its motion, the plaintiff
attached an affidavit and supporting invoices detailing
the hours expended and the hourly rates charged for
legal services. At the hearing on the plaintiff’s motion,
the plaintiff argued that the fees associated with this
case were reasonable under the circumstances. In
response, the defendants declined the opportunity to
examine counsel as to the reasonableness of his hourly
rate or the hours expended. In asking the court to order
a reasonable amount of attorney’s fees, the defendants’
counsel claimed, without any supporting evidence, that
the plaintiff had been overly litigious. The defendants’
counsel asked the court to issue an order for fees com-
mensurate with the underlying relief sought by the
plaintiff and he sought the sympathy of the court.
On November 14, 2016, the court, Rodriguez, J.,
granted the plaintiff’s motion for attorney’s fees in the
amount of $6391.63. The plaintiff moved for articulation
with regard to the court’s decision with regard to attor-
ney’s fees on November 21, 2016, which the court
denied. This appeal followed and, thereafter, the plain-
tiff moved for articulation with regard to both the
court’s July 28, 2016 judgment and its November 14,
2016 decision as to attorney’s fees. The court again
denied the plaintiff’s motion for articulation but this
court ordered the court to provide such an articulation.5
Additional facts will be set forth as necessary. At issue
are whether the court abused its discretion in failing
to make an award for unpaid real estate taxes and
whether the court’s award of attorney’s fees was reason-
able. We review each claim in turn.
I
The plaintiff claims that the trial court erred in render-
ing judgment for the plaintiff without awarding any
damages related to the defendants’ failure to pay the
real estate taxes as required by the lease. More specifi-
cally, the plaintiff argues that the defendants made judi-
cial admissions as to their liability for the taxes and,
moreover, that the attorney trial referee’s finding that
there was no evidence of the defendants’ failure to pay
the taxes was clearly erroneous in light of the undis-
puted evidence of the defendants’ liability and their
failure to pay. We agree with the plaintiff’s second
argument.6
We begin with the relevant legal principles that guide
our analysis of this claim. ‘‘It is axiomatic that [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 . . . attorney trial ref-
erees. . . . This court has articulated that attorney trial
referees and [fact finders] share the same function . . .
whose determination of the facts is reviewable in accor-
dance with well established procedures prior to the
rendition of judgment by the court. . . .
‘‘The factual findings of a [trial referee] on any issue
are reversible only if they are clearly erroneous. . . .
[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.) Gould v. Hall, 64 Conn. App. 45, 49–50,
779 A.2d 208 (2001).
Furthermore, ‘‘it is the function of this court to deter-
mine whether the decision of the trial court is clearly
erroneous. . . . This involves a two part function:
where the legal conclusions of the court are challenged,
we must determine whether they are legally and logi-
cally correct and whether they find support in the facts
set out in the memorandum of decision; where the fac-
tual basis of the court’s decision is challenged we must
determine whether the facts set out in the memorandum
of decision are supported by the evidence or whether,
in light of the evidence and the pleadings in the whole
record, those facts are clearly erroneous. . . .
‘‘[Additionally], we note that, because the attorney
[fact finder] does not have the powers of a court and
is simply a fact finder, [a]ny legal conclusions reached
by an attorney [fact finder] have no conclusive effect.
. . . The reviewing court is the effective arbiter of the
law and the legal opinions of [an attorney fact finder],
like those of the parties, though they may be helpful,
carry no weight not justified by their soundness as
viewed by the court that renders judgment.’’ (Citation
omitted; internal quotation marks omitted.) Walpole
Woodworkers, Inc. v. Manning, 126 Conn. App. 94, 99,
11 A.3d 165 (2011), aff’d, 307 Conn. 582, 57 A.3d 730(2012).
The following additional facts are relevant to our
resolution of this claim. During the hearing before the
attorney trial referee, the plaintiff elicited evidence
from its managing member, Bruce Sclafani. He testified
that the defendants did not meet their respective obliga-
tions under the lease and guarantee; specifically, that
the defendants did not pay the real estate taxes, rent,
and insurance. During direct examination, Sclafani con-
firmed the amounts due as set forth in the plaintiff’s
exhibit 4—plaintiff’s statement of amount due—which
provided an itemized list of the amounts outstanding,
including the real estate taxes in the amount of
$33,934.33. At one point during his direct examination,
when Sclafani was asked by his counsel to read aloud
from the exhibit the specific amounts listed, the defen-
dants’ counsel objected. He stated: ‘‘The document
speaks for itself. I think it’s in evidence. It’s a—if we’re
talking about the plaintiff’s statement of amount due.’’
The court sustained this objection. Additionally, during
cross-examination, counsel for the defendants pre-
sented Sclafani with defendants’ exhibit A, which was
the affidavit signed by Sclafani in conjunction with the
plaintiff’s application for a prejudgment remedy. This
document purported to itemize amounts due, at that
time, for rent, taxes, and insurance. During this cross-
examination, the defendants’ counsel elicited testimony
from Sclafani that the exhibit entered on behalf of the
defendants stated that the defendants owed real estate
taxes in the amount of $33,934.33.7 In response to that
questioning, Sclafani confirmed that the information
contained in defendants’ exhibit A was correct. In short,
at the defendants’ prodding and in response to a docu-
ment placed into evidence by the defendants, the plain-
tiff confirmed that the defendants owed $33,934.33 in
taxes.
Later, in closing arguments before the attorney trial
referee, counsel for the defendants twice referred to
defendants’ exhibit A, Sclafani’s affidavit of amounts
due to the plaintiff at the time the prejudgment remedy
application was filed, and asked the court to note that
exhibit and to enter orders consistent with its contents.
At one point, counsel sought to direct the court’s atten-
tion to Sclafani’s affidavit and later, in the same argu-
ment, counsel for the defendants asked the court to
use Sclafani’s affidavit to calculate damages and then
to add to it amounts for rent due for the months the
lessee occupied the premises after the date of Sclafani’s
affidavit. The only portion of the plaintiff’s damages
claim that the defendants disputed was that related to
alleged physical damage caused to the property by the
defendants, as to which, the defendants argued that
there was insufficient evidence. Consequently, counsel
argued that if he were correct about the plaintiff’s fail-
ure to prove that the defendants caused physical dam-
age to the property, ‘‘[t]hen my client owes the $53,000
stated in the affidavit, minus the $15,000 security
[deposit].’’ There is no dispute that the $33,934.33 owed
for the real estate taxes was included in Sclafani’s affi-
davit to which counsel referred. In short, our review
of the record of the hearing before the attorney trial
referee reflects that the amount of taxes due to the
plaintiff from the defendants was not only introduced
into evidence but was undisputed by the defendants.8
Notwithstanding the testimony of Sclafani, the item-
ized exhibits admitted during the hearing, and the defen-
dants’ acknowledgement of this debt, the attorney trial
referee concluded that the plaintiff failed to provide
any evidence of the real estate taxes owed. When the
trial court reviewed the attorney trial referee’s report
and the exhibits presented at trial, it accepted the find-
ings in the report and rendered judgment in accordance
with the recommendation of that report.
On the basis of our careful review of the record, we
conclude that the decision of the trial court to accept
the attorney trial referee’s factual findings, with respect
to the real estate taxes, was improper. Contrary to the
attorney trial referee’s factual findings, the record
clearly reflects testimony and documentary evidence
in support of the plaintiff’s tax claim. Both the plaintiff
and the defendants provided evidence, either through
testimony or full exhibits, that the defendants were
obligated to pay the taxes for the property, that the
defendants failed to meet that obligation, and, as a
result, the defendants then owed the plaintiff $33,934.33
in real estate taxes. Given that the defendants did not
dispute the amount of the real estate taxes due to the
plaintiff, and there was ample evidence to support the
plaintiff’s claim regarding taxes, the court should have
added the undisputed amount of $33,934.33 to the dam-
ages it awarded the plaintiff.
II
Next, the plaintiff claims that the trial court abused
its discretion in awarding only $6391.63 in attorney’s
fees. More specifically, the plaintiff contends that the
court considered only one factor in determining the
award of attorney’s fees, it did not determine a reason-
able hourly rate or a reasonable number of hours
expended upon litigation, and it improperly awarded
attorney’s fees based on the amount of damages
awarded to the plaintiff.
‘‘[T]he amount of attorney’s fees to be awarded rests
in the sound discretion of the trial court and will not
be disturbed on appeal unless the trial court has abused
its discretion: A court has few duties of a more delicate
nature than that of fixing counsel fees. The degree of
delicacy increases when the matter becomes one of
review on appeal. The principle of law, which is easy
to state but difficult at times to apply, is that only in
cases of a clear abuse of discretion by the trier may
we interfere. . . . The trier is always in a more advanta-
geous position to evaluate the services of counsel than
are we.’’ (Internal quotation marks omitted.) Schoon-
maker v. Lawrence Brunoli, Inc., 265 Conn. 210, 258–
59, 828 A.2d 64 (2003).
The trial court’s exercise of discretion, however, is
not unbounded as there are parameters for the court’s
reasonable exercise of its judgment. ‘‘[T]he initial esti-
mate of a reasonable attorney’s fee is properly calcu-
lated by multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly
rate. . . . The courts may then adjust this lodestar cal-
culation by other factors [outlined in Johnson v. Geor-
gia Highway Express, Inc., 488 F.2d 714, 717–19 (5th
Cir. 1974)]. . . . The Johnson factors may be relevant
in adjusting the lodestar amount, but no one factor is
a substitute for multiplying reasonable billing rates by
a reasonable estimation of the number of hours
expended on the litigation.’’ (Footnote omitted; internal
quotation marks omitted.) Carrillow v. Goldberg, 141
Conn. App. 299, 317–18, 61 A.3d 1164 (2013).
‘‘It is well established that a trial court calculating a
reasonable attorney’s fee makes its determination while
considering the factors set forth under rule 1.5 (a) of
the Rules of Professional Conduct.9 . . . A court utiliz-
ing the factors of rule 1.5 (a) considers, [among other
things], the time and labor spent by the attorneys, the
novelty and complexity of the legal issues, fees custom-
arily charged in the same locality for similar services,
the lawyer’s experience and ability, relevant time limita-
tions, the magnitude of the case and the results
obtained, the nature and length of the lawyer-client
relationship, and whether the fee is fixed or contingent.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Schoonmaker v. Lawrence Brunoli,
Inc., supra, 265 Conn. 259; see also Altschuler v. Min-
grone, 98 Conn. App. 777, 781, 911 A.2d 337 (2006), cert.
denied, 281 Conn. 927, 918 A.2d 276 (2007); Rules of
Professional Conduct 1.5. ‘‘[This] list of factors is not,
however, exclusive. The court may assess the reason-
ableness of the fees requested using any number of
factors . . . .’’ (Internal quotation marks omitted.)
Glastonbury v. Sakon, 184 Conn. App. 385, 394, 194
A.3d 1277 (2018).
After the court rendered judgment for the plaintiff,
it conducted a hearing regarding attorney’s fees on
October 13, 2016. During that hearing, the plaintiff’s
counsel submitted time sheets and affidavits in support
of his argument that he was owed $27,904.12 in attor-
ney’s fees. Defense counsel declined the opportunity
to examine the plaintiff’s counsel and he made no argu-
ment that counsel’s hourly rates were unreasonable.
Rather, he argued, without any supporting evidence,
that the plaintiff had been overly litigious and, as noted,
he sought the court’s sympathy on behalf of the defen-
dant guarantor. Specifically, he claimed to the court
that the plaintiff had sold the property at a windfall
profit and that his client, the guarantor, on the other
hand, had lost his business, was elderly, on a fixed
income, and would have to pay the judgment by secur-
ing a reverse mortgage while trying to hold on to his
home.10
Subsequent to the October 13, 2016 hearing, the court
rendered judgment granting the plaintiff’s motion for
attorney’s fees in the amount of $6391.63. Following an
order from this court, Judge Rodriguez articulated that
he awarded that amount because $27,904.12 was
‘‘excessive and unreasonable under the circumstances’’
and ‘‘[a]n attorney’s fee award of $6391.63 is reasonable
based on the judgment of $41,535.74.’’ (Emphasis
added.)
This court has ‘‘consider[ed] problematic [a] court’s
use of the amount in controversy as a gauge for the
award of attorney’s fees. This court previously has held
that the consideration of the amount involved, isolated
from all other factors, is an improper gauge for a reason-
able award of attorney’s fees.’’ Costanzo v. Mulshine,
94 Conn. App. 655, 664, 893 A.2d 905, cert. denied, 279
Conn. 911, 902 A.2d 1070 (2006). Because the court
indicated in its articulation that it tied its award of
attorney’s fees to the amount of the damages awarded
to the plaintiff, we conclude that the amount awarded
for attorney’s fees must be vacated and a new hear-
ing held.
The judgment is reversed with respect to the trial
court’s failure to award real estate taxes and with
respect to its award of attorney’s fees and the case is
remanded with direction to award the plaintiff
$33,934.33 for past due real estate taxes and to conduct
a hearing and issue a reasonable order for the payment
of attorney’s fees consistent with the requirements of
law; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
Gilbert Beck, who is the president of Sport-N-Life Distributing, LLC,
executed a personal guarantee in which he obligated himself to complete
‘‘prompt payment of all rent, and the performance of all the terms, covenants,
and conditions provided in [the] [l]ease.’’
2
The complaint contained two counts, one against the lessee for its failure
to make payments as required by the lease and the second count against
the guarantor for his failure to meet his obligations as the guarantor of the
payments. Because, as a practical matter, their obligations were merged,
we refer to them as the defendants without distinction.
3
The court’s award of damages corresponds to the attorney trial referee’s
recommendation ($51,000 minus $15,000 plus $5535.74 equals $41,535.74).
4
During the hearing, the plaintiff provided the court with updated time
sheets that reflected a new total of $27,904.12 in legal fees due to counsel
for the plaintiff.
5
Following the trial court’s denial of the plaintiff’s motion for articulation,
the plaintiff filed an appeal with this court together with a motion to review
the trial court’s denial, pursuant to Practice Book § 66-6. This court granted
the motion for review and ordered the trial court to ‘‘articulate (1) why it
rendered judgment in favor of the defendants on the issue of real estate
taxes and (2) why it only awarded the plaintiff $6391.63 in attorney’s fees
when the plaintiff sought $27,904.12 in such fees.’’ Judge Rodriguez issued
his articulation on November 30, 2018. The contents of that articulation will
be addressed throughout this opinion.
6
Because we reverse in part the judgment of the trial court and remand
the case on the basis of the plaintiff’s second argument, we need not address
the first argument.
7
It appears that the defendants offered this exhibit because it reflected
a lower amount due for rent, a discrepancy that was resolved at trial once
it became evident that the lessee had remained on the premises for additional
months without paying rent.
8
During oral argument before this court, counsel for the defendants
acknowledged that the defendants owed real estate taxes in the amount
claimed by the plaintiff.
9
The criteria set forth in rule 1.5 (a) of the Rules of Professional Conduct
parallel, in large part, those factors set forth in Johnson v. Georgia Highway
Express, Inc., supra, 488 F.2d 717–19, with the exception of two that are
found in Johnson but not in rule 1.5 (a) of the Rules of Professional Conduct.
Those two factors include the undesirability of the case and awards in
similar cases.
10
It is axiomatic that appeals to the sympathy of the court are not appro-
priate argument concerning an award of attorney’s fees, and that the court
is required to decide the plaintiff’s entitlement to attorney’s fees by dispas-
sionately assessing the relevant facts in light of the legal criteria for such
an award.