Philip Quaranta et al. v. William Cooley et al. (2013)

RULING ON PLAINTIFFS' MOTION FOR ORDER (# 168)

I

INTRODUCTION

On November 28, 2012, the plaintiffs, Philip and Arlene Quaranta, moved this court to address two matters left unresolved following a remand from the Appellate Court.  Quaranta v. Cooley, 130 Conn.App. 835, 26 A.3d 643 (2011).   The two issues presented are whether the plaintiffs are entitled to recover (1) attorneys fees in the amount of $17,562.50, and (2) driveway and common easement area repair and maintenance costs.¹  This matter came before the court and was heard on September 25, 2013.   The court invited the parties to make additional submissions after the hearing.   Each party made additional submissions and, at the defendant's ² request, the court permitted another hearing to address the additional submissions.   On November 8, 2013, the parties came before the court to be heard on the additional submissions.

II

FACTUAL AND PROCEDURAL HISTORY

On December 3, 2007, the court issued a memorandum of decision relative to a complaint sounding in negligence and intentional infliction of emotional distress.   The plaintiffs had sought punitive damages, attorney's fees, compensatory and “other relief as the court deems fair, just and equitable.”   The memorandum of decision included a series of fifteen (15) orders regarding the use of a driveway shared by the plaintiffs and the defendant, Joanne Cooley.   The order applied to “the defendant and her family.”   One of the fifteen orders stated:  “(2) Do not drive your vehicles more than ten miles per hour [‘mph’] on the right of way.”   Another order stated:  “(4) Do not make obscene gestures on the right of way;” and a third mandate was:  “(5) Do not park on the right of way or allow any of your guests to do so.”  Quaranta v. Cooley, Superior Court, judicial district of Litchfield, Docket No. CV–05–4002605–S (December 3, 2007, Gill, J.).   No appeal was taken from that decision.

Thereafter, the plaintiffs filed three motions for contempt.³  Quaranta v. Cooley, supra, 130 Conn.App. 838.   On May 7, 2008, the court held a hearing to consider all three motions for contempt, and, on that same day, the court issued an order, finding the defendant in contempt.  Id., 838–39.   The court did not, on that occasion, order the defendant to pay attorneys fees.  Id., 839.   On June 9, 2008 the plaintiffs filed another motion for contempt and, on August 6, 2008 they filed a “motion for order,” seeking the imposition of penalties against the defendant, claiming that she had violated the court-imposed speed limit on seventy-two occasions.  Id. They requested, in addition to monetary penalties for violations established at the May 7, 2008 hearing, an order that the defendant pay one-half the cost of repaving the driveway, and an order that the plaintiffs be reimbursed for attorneys fees incurred between February 22, 2008, and the date of the motion for order.  Id., 839.

On July 13, 2009, the court ordered the defendant to pay a $100 fine for each violation of the court's December 3, 2007 order, for a total of $7,200, and ordered the defendant pay $17,562.50 for counsel fees incurred by the plaintiffs after February 22, 2008.  Id., 840, 845.⁴

The Appellate Court reversed the foregoing orders because “[t]he court's July 13, 2009 order imposing $100 penalties on the defendant was neither conditional nor coercive because the penalties were not prospective in nature;  rather, they were imposed for violations of the court's orders that already had occurred.   Moreover, the order did not provide the defendant with a warning that if her contemptuous behavior continued, then she would be subject to penalties.”  (Emphasis in original.)  Id., 843.   The defendant had argued, on appeal, that “[i]n accordance with her due process rights, [she] was entitled to a ․ hearing in order to cross examine and [to] produce evidence refuting [the] plaintiffs' alleged actual losses and the amount of the [court's July 13, 2009] financial orders.”  (Emphasis added;  internal quotation marks omitted.)  Id., 844.   The Appellate Court agreed.  Id.

The Appellate Court noted that the plaintiffs' motion for order, which led to the July 13, 2009 order that the defendant pay $17,562.50 for counsel fees, was the subject of an objection by the defendant in which she sought a hearing “to dispute the allegations contained in the [p]laintiffs' motion for order.”   (Emphasis in original;  internal quotation marks omitted.)  Id., 847.   The Appellate Court reversed the July 13, 2009 order that the defendant pay the plaintiffs' attorneys fees and the costs of repairing the driveway pending a hearing on the latter issues, at which the defendant would have an opportunity to present “her own evidence regarding the extent of the plaintiffs' attorneys fees or the cost of repairing the driveway and to cross examine as to evidence offered by the plaintiffs.”  (Emphasis added.)  Id., 847.   The plaintiffs' evidence, on which the trial court had awarded attorneys fees and the cost of repaving the driveway, consisted of affidavits setting forth attorneys fees and an estimate of the cost of repaving.  Id., 845.   The judgment was reversed and the case remanded for “further proceedings according to law.”  Id., 847.

Thereafter, and instead of claiming to the court the motion that led to the initial attorneys fees award of $17,562.50, the plaintiffs filed a new motion for contempt on November 3, 2011, and claimed that motion to the court.   In February and March 2012, this court held hearings relative to that motion.   At that time, the plaintiffs sought “a conditional and coercive sanction for the intentional violations of [court] orders, for those violations proven at the May 7, 2008 hearing as well as those still to be presented to the court, and to order the defendant to pay to the plaintiffs a sum sufficient to reimburse the plaintiffs for counsel fees incurred in the drafting and filing of this motion and for the hearing on this motion.”  (Emphasis added;  internal quotation marks omitted.)   Ruling on Pls.' Mot. for Contempt, April 12, 2012.

In an opinion dated April 12, 2012 this court ordered a series of conditional and coercive sanctions relative to the defendant's vehicular travel on the driveway shared by the parties.   The plaintiffs do not now claim that the defendant has failed to comply with the court's orders of April 12, 2012.   Instead, the plaintiffs claim that the only issues before the court involve the plaintiffs' demand for attorneys fees and expenses generated prior to August 6, 2008, and for costs associated with driveway repair and maintenance.

At the hearing on September 25, 2013, the plaintiffs introduced an attorneys fees affidavit reflecting the basis for the claim of $17,562.50.   Neither the plaintiffs nor the defendant presented any witnesses regarding the claim for attorneys fees.   Although the defendant, a self-represented party, did not challenge the affidavit, the plaintiffs agreed on the record that the court has an independent obligation to determine whether attorneys fees should be awarded and, if so, the amount that should be awarded.   See Appliances, Inc. v. Yost, 186 Conn. 673, 681, 443 A.2d 486 (1982).

The plaintiffs did not offer any testimony with regard to the issue of repairs to that part of the driveway over which the defendant holds an easement, but instead introduced a repair estimate that had been prepared in 2008.   Due to the unreliability of a five-year old repair estimate, the court invited the parties to submit current estimates no later than October 16, 2013.   On that date, the plaintiffs submitted three estimates, with the lowest estimate for repairs costing $11,000.   The defendant submitted an estimate on October 23, 2013, that provided for repairs costing $10,350.   The defendant requested a hearing, and the parties appeared before the court on November 8, 2013.   At that time, neither party introduced testimony but both parties presented argument regarding the various repair estimates.

II

DISCUSSIONAAttorneys Fees

The issue of attorneys fees is governed, in part, by General Statutes § 52–256b(a), which permits the court to award to the petitioner “a reasonable attorneys fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt.”   The issue now before the court is also governed, of course, by the Appellate Court ruling on this issue.  “Whether to allow counsel fees and in what amount calls for the exercise of judicial discretion ․” (Citation omitted;  internal quotation marks omitted.)  Quaranta v. Cooley, supra, 130 Conn.App. 846.

In DPF Financial Holdings, LLC v. Lyons, 129 Conn.App. 380, 21 A.3d 834 (2011), the Appellate Court examined the issue of an award of attorneys fees, following a finding of civil contempt, in a case in which neighboring landowners had a contentious relationship.   The defendant had an easement, giving her access to her lots, but the plaintiff alleged that the defendant committed a trespass.  Id., 381–82.   The court issued an order, which was allegedly violated, ultimately resulting in a finding of contempt against the defendant.  Id., 383–84 The trial court awarded attorneys fees to the plaintiff, an award that was reversed on appeal.  Id., 384, 388.

The Appellate Court's discussion of an award of attorneys fees in DPF Financial Holdings is helpful in the context of this case.  “[O]rdinarily, courts in this country do not award attorneys fees to the prevailing party unless ․ the payment of such fees is provided for by statute ․ The authority of the trial court to award attorneys fees following a contempt proceeding is well settled.   Once a contempt has been found, [General Statutes § 52–256b(a) ] ⁵ establishes a trial court's power to sanction a noncomplying party through the award of attorneys fees ․ The award of attorneys fees in contempt proceedings is within the discretion of the trial court ․ Whether to allow counsel fees and in what amount calls for the exercise of judicial discretion.”  (Internal quotation marks omitted.)  DPF Financial Holdings, LLC v. Lyons, supra, 129 Conn.App. 388.   In DPF Financial Holdings, the Appellate Court ordered the defendant to pay attorneys fees to compensate the plaintiff for expenses incurred in having to bring the action.  Id., 389.   The Appellate Court expressed a preference for an award of attorneys fees based not only on the court's general knowledge as to attorneys fees, but which also includes a familiarity, by the court, with counsel's preparation and presentation of the case.  Id.

“Our Supreme Court has long held that there is an undisputed requirement that the reasonableness of attorneys fees and costs must be proven by an appropriate evidentiary showing ․ We also have noted that courts have a general knowledge of what would be reasonable compensation for services which are fairly stated and described ․” (Internal quotation marks omitted.)  Id., 390.   In the present case, the plaintiffs' presentation suffers, at least, from the fact that they failed to produce any evidence to support the bare claim of attorneys fees that is set forth in the attorneys fees affidavit.

Our Supreme Court “clarified the basis on which a trial court may make a determination of the reasonableness of requested attorneys fees, explaining that more than [a] trial court's mere general knowledge is required for an award of attorneys fees ․ The burden of showing reasonableness rests on the party requesting the fees, and there is an undisputed requirement that the reasonableness of attorneys fees and costs must be proven by an appropriate evidentiary showing ․ Specifically ․ there 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 predicate must include a statement of the fees requested and a description of services rendered ․ [I]mposing such a preliminary burden on the proponent of the fees affords the opposing party an opportunity to challenge the amount requested at the appropriate time ․ [W]hen a party against whom attorneys fees are sought affirmatively objects to the submission of evidence in support of the request for attorneys fees ․ the opposing party is entitled to litigate fully the reasonableness of the fees requested.”  (Citations omitted;  internal quotation marks omitted.)  Commission on Human Rights & Opportunities v. Sullivan, 285 Conn. 208, 237–38, 939 A.2d 541 (2008).

The holding in Sullivan coupled with the Appellate Court's ruling in this case compel several conclusions.   First, the burden was on the plaintiffs to show that the claimed fees were reasonable, and the plaintiffs were obligated to make such a showing in a manner that went beyond simply introducing the same August 6, 2008 affidavit that formed the basis of the July 13, 2009 order.   The Appellate Court ruling clearly contemplated, and specifically called for, a hearing at which the defendant would have an opportunity to exercise her due process right to cross-examine witnesses whom the plaintiffs were to produce.

This court's April 12, 2012 ruling on the plaintiffs' November 3, 2011 motion for contempt raised serious doubts about the manner in which the plaintiffs had litigated the issues presented relative to that motion.   In that April 12, 2012 ruling, due in part to shortcomings in the manner in which the latter motion was litigated, the court declined to award attorneys fees.⁶  The combination of the rule set forth in Sullivan, the specific direction of the Appellate Court in the prior appeal, and this court's ruling of April 12, 2012, make clear that the plaintiffs had the burden of establishing the reasonableness of the fees that they were seeking, and that such a burden could not be fulfilled by simply introducing fee affidavits.   The plaintiffs have failed to meet their burden and the court declines to award attorneys fees to the plaintiff.⁷

B

Driveway Repair and Maintenance

A second issue before this court involves the cost of repaving the shared driveway.   The trial court's prior order on this issue was also reversed and remanded by the Appellate Court, with a direction that the defendant be given an opportunity to present, at a hearing, her own evidence regarding the cost of repairing the driveway and to cross-examine evidence offered by the plaintiffs.  Quaranta v. Cooley, supra, 130 Conn.App. 847.

As with the issue pertaining to attorneys fees, the plaintiffs did not present any witnesses on the issue of the cost of repaving or repairing the driveway.   However, at the hearing, the parties did reach several agreements relative to this issue.

The parties agreed that the part of the driveway at issue is a fifty-foot wide strip of land that runs from Dorwin Hill Road up to the point where a separate driveway branches off to the left, permitting the plaintiffs to have access to their property.   The parties also agreed that, of that fifty-foot wide strip of land, only the right-side of the strip, approximately twenty-five feet in width, is paved.   The left side of the strip, paralleling the paved portion, is grass.   The parties also agreed that the plaintiffs own the paved portion of the driveway and the defendant has an easement on that paved portion.   The parties agreed that the defendant owns the grass side of the strip of land and the plaintiffs have an easement on the grass portion.

Although the plaintiffs have an easement along the entire grass portion of the fifty-foot wide strip, they only use a small portion of that easement when they turn left to enter the branch driveway that leads to their property.   Both the plaintiffs and the defendant enter and leave their properties using the paved portion of the strip of land.   Therefore, the defendant is the owner of an easement that belongs to and benefits the dominant estate and burdens the servient estate.   See Powers v. Grenier Construction, Inc., 10 Conn.App. 556, 559, 524 A.2d 667 (1987).  “The duty of maintaining an easement so that it can perform its intended function rests on the owner of the easement absent any contrary agreement.”  Id., 560.

It is clear that the defendant has the duty of maintaining the easement.   Despite the fact that the defendant has that duty, the plaintiffs offered, at the hearing, to bear one-half of the cost of needed repairs.   At the September 25, 2012 hearing, the plaintiffs introduced evidence, without objection, establishing that the portion of the driveway at issue is in need of repair.   The plaintiffs introduced an estimate for repair, prepared on May 14, 2008, by a contractor.   The parties then agreed to seek additional, current estimates regarding repairs of the portion at issue and further agreed to file those estimates on or before October 16, 2013.⁸  The plaintiffs submitted three estimates on October 16, 2013.   The defendant made an untimely submission on October 23, 2013, accompanied by a single estimate.   That estimate, for $10,350, was prepared by Greenway Industries, the entity that prepared one of the plaintiffs' estimates.   The estimate prepared by Greenway Industries for the plaintiffs offered two possible methods of repair, one costing $15,000 and the other costing $13,800.

The court reviewed those estimates and heard from the parties, relative to the estimates, on November 8, 2013.   At that time, neither party offered testimony by any of the individuals who prepared the estimates.   The defendant argued that the $10,350 estimate was most desirable and also contended that the driveway does not require immediate repair.   The plaintiffs responded that the estimate obtained by the defendant would not produce lasting results, and if the latter estimate were to be accepted, the plaintiffs would withdraw their (gratuitous) offer to bear one-half of the cost of repair.

Considering all of the estimates submitted, and having heard from the parties and considered the evidence presented at both hearings, the court finds that the estimate by Four Star Paving and Seal Coating reflecting an $11,000 cost of repair is the most appropriate proposal.   Based upon the agreement of the parties, the court orders the plaintiffs and the defendant to each pay $5,500 toward the cost of repair by Four Star Paving and Seal Coating, a figure that represents one-half of the average estimated cost of driveway repair.

So ordered.

John A. Danaher III, J.

FOOTNOTES

FN1. This motion appears to have been filed in response to the court's ruling of May 11, 2012, denying the plaintiffs' May 1, 2012 motion for reconsideration, but inviting the plaintiffs to claim to the court the plaintiffs' motion of August 6, 2008.   The plaintiffs' motion for order dated November 28, 2012, specifically requests that this court “address the issue of attorneys fees in the plaintiff's August 6, 2008 Motion for Order (# 136.00) ․ [and] the issue of driveway repairs ․”.  FN1. This motion appears to have been filed in response to the court's ruling of May 11, 2012, denying the plaintiffs' May 1, 2012 motion for reconsideration, but inviting the plaintiffs to claim to the court the plaintiffs' motion of August 6, 2008.   The plaintiffs' motion for order dated November 28, 2012, specifically requests that this court “address the issue of attorneys fees in the plaintiff's August 6, 2008 Motion for Order (# 136.00) ․ [and] the issue of driveway repairs ․”

FN2. Defendant William Cooley is nonappearing.   Therefore, all references will be to “the defendant” and refer to Joanne Cooley, only..  FN2. Defendant William Cooley is nonappearing.   Therefore, all references will be to “the defendant” and refer to Joanne Cooley, only.

FN3. The motions for contempt were filed on February 11, March 10, and April 4, 2008.  Quaranta v. Cooley, supra, 130 Conn.App. 838..  FN3. The motions for contempt were filed on February 11, March 10, and April 4, 2008.  Quaranta v. Cooley, supra, 130 Conn.App. 838.

FN4. To be precise, the order at issue was based upon a proposed order submitted by the plaintiffs, in which the court ordered the defendant “to pay all outstanding fees to the plaintiffs as an award of counsel fees and costs incurred by the plaintiffs since February 22, 2008.”.  FN4. To be precise, the order at issue was based upon a proposed order submitted by the plaintiffs, in which the court ordered the defendant “to pay all outstanding fees to the plaintiffs as an award of counsel fees and costs incurred by the plaintiffs since February 22, 2008.”

FN5. General Statutes § 52–256b(a) provides:  “When any person is found in contempt of any order or judgment of the Superior Court, the court may award to the petitioner a reasonable attorneys fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt.”.  FN5. General Statutes § 52–256b(a) provides:  “When any person is found in contempt of any order or judgment of the Superior Court, the court may award to the petitioner a reasonable attorneys fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt.”

FN6. See Ruling on Pls.' Mot. for Contempt, April 12, 2012 (finding many flaws in the plaintiffs' approach to litigating the matter and declining to award any attorneys fees at all);  Order, May 11, 2012 (denying plaintiffs' motion for reconsideration of April 12, 2012 ruling).   No appeal was taken from either of the latter rulings..  FN6. See Ruling on Pls.' Mot. for Contempt, April 12, 2012 (finding many flaws in the plaintiffs' approach to litigating the matter and declining to award any attorneys fees at all);  Order, May 11, 2012 (denying plaintiffs' motion for reconsideration of April 12, 2012 ruling).   No appeal was taken from either of the latter rulings.

FN7. In the plaintiffs' motion for order filed on November 28, 2012, they took the position that the attorneys fees issue was before this court in the course of the 2012 hearing discussed, supra.   In view of the fact that the plaintiffs hold such a view, and yet filed the instant motion for order seeking attorneys fees, and in view of this ruling, the court concludes that it is appropriate to remind the parties of our Supreme Court's holding in Danbury v. Dana Investment Corp., 257 Conn. 48, 57–58, 776 A.2d 438 (2001).   There, our Supreme Court stated that when a case is remanded for a hearing on the reasonableness of fees, and the plaintiff fails to accept the opportunity to present evidence, no further hearings will be held.   Id. The court explained that “[i]t is well established that a plaintiff is limited to only one opportunity to prove its claim.”  Id., 58..  FN7. In the plaintiffs' motion for order filed on November 28, 2012, they took the position that the attorneys fees issue was before this court in the course of the 2012 hearing discussed, supra.   In view of the fact that the plaintiffs hold such a view, and yet filed the instant motion for order seeking attorneys fees, and in view of this ruling, the court concludes that it is appropriate to remind the parties of our Supreme Court's holding in Danbury v. Dana Investment Corp., 257 Conn. 48, 57–58, 776 A.2d 438 (2001).   There, our Supreme Court stated that when a case is remanded for a hearing on the reasonableness of fees, and the plaintiff fails to accept the opportunity to present evidence, no further hearings will be held.   Id. The court explained that “[i]t is well established that a plaintiff is limited to only one opportunity to prove its claim.”  Id., 58.

FN8. The court invited the parties, once they received and reviewed each other's filings, to request a further hearing on the issue of the cost of repair, if either party wished to have such a hearing.   The defendant requested an additional hearing and that request was granted..  FN8. The court invited the parties, once they received and reviewed each other's filings, to request a further hearing on the issue of the cost of repair, if either party wished to have such a hearing.   The defendant requested an additional hearing and that request was granted.

Danaher, John A., J.