J. WILLIAM GAGNE, JR. v. ENRICO VACCARO
(AC 32247)
Connecticut Appellate Court
Argued October 29, 2014—officially released January 13, 2015
Gruendel, Prescott and Borden, Js.
(Appeal from Superior Court, judicial district of New Haven, Hon Anthony V. DeMayo, judge trial referee.)
Matthew J. Corcoran, for the appellant (defendant).
Peter A. Ventre, for the appellee (plaintiff).
GRUENDEL, J. This consolidated appeal comes to us on remand from our Supreme Court. In Gagne v. Vaccaro, 133 Conn. App. 431, 439, 35 A.3d 380 (2012), this court held that the trial court improperly failed to recuse itself from hearing the motion for appellate attorney‘s fees, discovery objections, and motion for contempt filed by the plaintiff, J. William Gagne, Jr. Our Supreme Court reversed that decision, concluding that the recusal issue was moot and, therefore, not properly before this court. Gagne v. Vaccaro, 311 Conn. 649, 660, 90 A.3d 196 (2014). The court remanded the case to us with direction to dismiss the appeal as to that issue and to consider the remaining claims advanced by the defendant, Enrico Vaccaro. Id., 662. Consistent with that mandate, we now consider whether the trial court (1) abused its discretion in entering certain discovery orders, (2) lacked authority to impose interest or taxable costs on its award of attorney‘s fees, and (3) improperly held the defendant in contempt. We affirm in part and reverse in part the judgments of the trial court.
As the Supreme Court aptly observed, “[t]he present action is the culmination of a disagreement between two attorneys that has lasted decades.” Id., 651. The facts relevant to this appeal largely were set forth in our earlier decision. “In 2005, the plaintiff commenced the underlying action seeking foreclosure of a judgment lien held against property owned by the defendant. . . . [T]he defendant filed an answer, special defenses and a counterclaim. The plaintiff filed a motion for summary judgment as to liability only, which the court granted. . . . [T]he defendant appealed from the summary judgment, but the appeal was dismissed both for lack of a final judgment and because the defendant‘s appeal as to his counterclaim was frivolous. Our Supreme Court denied the defendant‘s petition for certification to appeal. . . .
“On May 31, 2006, the plaintiff filed a motion for appellate attorney‘s fees incurred in connection with the first appeal. On July 14, 2006, the plaintiff filed a preemptive motion to terminate any appellate stay that might arise if the defendant filed another appeal, arguing that any appeal would be without merit and merely for purposes of delay. . . . [T]he court granted the motion to terminate a stay, rendered a judgment of strict foreclosure on the plaintiff‘s judgment lien, and awarded the plaintiff attorney‘s fees for the defendant‘s first appeal and for the foreclosure. . . . [T]he defendant filed a motion to reargue and for reconsideration, which the court denied . . . . The defendant filed a second appeal on August 30, 2006, from the judgment of strict foreclosure. On April 29, 2008, this court affirmed the trial court‘s judgment. . . .
“On May 28, 2008, the plaintiff filed a motion for
“The present appeal concerns the matters which occurred following this court‘s remand to the trial court in December, 2009. Following [that] remand, the plaintiff filed a motion for appellate attorney‘s fees incurred in responding to the defendant‘s third appeal and a motion for an order that the hearing ordered by this court would occur at the same time as the hearing on his most recent motion for attorney‘s fees. The defendant filed objections to the plaintiff‘s motions for appellate attorney‘s fees in connection with the second and third appeals. In addition, the defendant filed a deposition notice and a subpoena seeking the production of numerous documents from the plaintiff‘s attorney. On March 9, 2010, the court granted the plaintiff‘s motions for a protective order and to quash the subpoena, and the court overruled the defendant‘s objection thereto.” (Citations omitted; footnote omitted.) Gagne v. Vaccaro, supra, 133 Conn. App. 433–35.
The court held a hearing on the plaintiff‘s motions for appellate attorney‘s fees on March 23, 2010, and thereafter awarded the plaintiff $16,980 in attorney‘s fees for the defendant‘s second appeal and $9860 for the third appeal. In its memorandum of decision, the court further ordered that “legal interest of 10 percent on any unpaid portion of the fee awarded for the second appeal shall commence thirty days from the date of this decision,” and that “legal interest of 10 percent on any unpaid portion of the fee awarded for the third appeal shall commence sixty days from the date of this decision.” In addition, the court credited the plaintiff‘s representation that “the defendant has not yet paid costs taxed against him in prior proceedings, though the parties agreed on the amount to be paid. The sum of $522.60
On May 21, 2010, the plaintiff filed a motion, pursuant to
On August 19, 2010, the plaintiff filed what he termed a “motion for order and/or for contempt.” He alleged in relevant part that “[t]o date the defendant has failed, neglected and refused to deposit the funds . . . as ordered by the court. Such was confirmed by the court on August 18, 2010. The plaintiff seeks that the defendant be ordered to immediately deposit the funds with the court as ordered. Further, in addition or in the alternative, the plaintiff seeks that the defendant be held in contempt, that he immediately deposit the funds with the court as ordered, that he pay the plaintiff‘s additional attorney‘s fees [for] motion and the court enter further orders as it deems appropriate. The plaintiff seeks $500 in attorney‘s fees.”
On September 7, 2010, the defendant deposited $26,873.39 into the court‘s escrow account, in accordance with the court‘s supplemental orders of June 17, 2010.
The court rendered judgment on the plaintiff‘s motion for contempt on September 9, 2010. Its order stated in full: “The plaintiff has filed a ‘Motion for Order and/or For Contempt’ in which he seeks to have the court order the defendant to comply with its order of June 17, 2010. That order is in effect, the Appellate Court having denied the defendant‘s request to stay it or otherwise nullify it on July 28, 2010. It appearing that any further order of this court will also be ignored by the defendant, and no response to the Appellate Court action having been filed, the court finds the defendant to be in contempt of its June 17 order. The sanctions to be imposed for contempt will be addressed on September 28, 2010, at 10 a.m. in this court in a courtroom to be assigned by the caseflow clerk. An award of counsel fees for the plaintiff‘s motion and this proceeding
Approximately one week later, the defendant filed a motion for reconsideration requesting that the court “vacate its order dated September 9, 2010, for the reason that the defendant deposited the funds in issue with the clerk of the court prior to the entry of the order, as evidence by the receipt attached hereto.” The plaintiff filed an objection to that motion, arguing both that the defendant‘s belated payment of $26,873.39 did not include $749.77 in interest and that, irrespective of any payment, the defendant already had been found to be in contempt.
The court held a hearing on the issue of sanctions on September 28, 2010. It thereafter denied the defendant‘s motion for reconsideration and awarded the plaintiff $850 in attorney‘s fees. The court also ordered that (1) the defendant “deposit the alleged shortage” in the court‘s escrow account “or file an affidavit with a computation indicating there is no shortage,” and (2) “the defendant is to appear personally at any court procedure involving this case and scheduled for hearing, argument or other action.” The defendant appealed from that judgment to this court under docket number AC 32830, which was consolidated with docket number AC 32247.
I
The defendant claims that the court abused its discretion in entering certain discovery orders with respect to the plaintiff‘s motions for appellate attorney‘s fees. We do not agree.
It is well established that “the granting or denial of a discovery request rests in the sound discretion of the [trial] court, and is subject to reversal only if such an order constitutes an abuse of that discretion.” (Internal quotation marks omitted.) Barry v. Quality Steel Prods., Inc., 280 Conn. 1, 16–17, 905 A.2d 55 (2006); see also Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 176–77, 757 A.2d 14 (2000) (“[d]ecisions regarding discovery are best left to the trial court in its reasoned discretion“); Lougee v. Grinnell, 216 Conn. 483, 491, 582 A.2d 456 (1990) (ruling on motion to quash deposition subpoena reviewed for abuse of discretion), overruled in part on other grounds by State v. Salmon, 250 Conn. 147, 154–55, 735 A.2d 333 (1999) (en banc); Pryor v. Pryor, 140 Conn. App. 64, 68, 57 A.3d 846 (2013) (ruling on motion for protective order reviewed for abuse of discretion). “Under the abuse of discretion standard, [a reviewing court] must make every reasonable presumption in favor of the trial court‘s action.” (Internal quotation marks omitted.) Woodbury Knoll, LLC v. Shipman & Goodwin, LLP, 305 Conn. 750, 775, 48 A.3d 16 (2012).
The following additional facts are relevant to the defendant‘s claim. After the plaintiff filed motions
On March 23, 2010, the court held an evidentiary hearing on the plaintiff‘s motions for appellate attorney‘s fees, at which the plaintiff‘s two affidavits of attorney‘s fees were admitted into evidence. Ventre testified as a witness and was subject to cross-examination by the defendant. At that hearing, the defendant did not present any documentary or testimonial evidence whatsoever.
In its written memorandum of decision awarding the plaintiff appellate attorney‘s fees, the court concluded that the fees requested were reasonable. In particular, the court found that Ventre‘s rate of $200 per hour was “reasonable and [he] actually could easily demand a higher rate in this era of $300 and higher rates per hour.” The court also emphasized the tortured history of this litigation, stating that “the defendant is prone to repeating prior claims. The plaintiff cannot be expected to do a less than thorough job in view of the case history and the defendant‘s penchant for appellate review.”
On appeal, the defendant argues that the court abused its discretion in denying him discovery, consistent with the requests set forth in his subpoena and notice of deposition. His claim is belied by the fact that, months prior to his requests, the plaintiff provided him with extremely detailed affidavits of attorney‘s fees that specified the date and nature of the work performed, as well as the amount of time dedicated thereto. Those affidavits address several of the requests set forth in the defendant‘s February 8, 2010 notice of deposition.
In addition, the record plainly indicates that a full evidentiary hearing was held on the issue of appellate attorney‘s fees. The defendant questioned Ventre at length during that proceeding, subjecting his testimony as to the reasonableness of his attorney‘s fees to the crucible of cross-examination. As our Supreme Court has held, the opportunity “to question under oath a billing attorney who has submitted an affidavit in support of the requested fees” is “the most fair and efficient means of challenging those fees, that is, questioning under oath the very person on whom the court relies in assessing the fees, the billing attorney.”5 Commission on Human Rights & Opportunities v. Sullivan, 285 Conn. 208, 239, 939 A.2d 541 (2008). In considering the necessity and reasonableness of the defendant‘s discovery requests, the court no doubt was cognizant that the defendant would have the opportunity to question Ventre under oath, particularly when the case recently had been reversed in part by this court and remanded due to a prior failure to allow the defendant to cross-examine him “as to the fees claimed.” See Gagne v. Vaccaro, 118 Conn. App. 367, 373, 984 A.2d 1084 (2009).
We further are mindful of the procedural posture of this case. At the time that the court confronted the issue of discovery with respect to appellate attorney‘s fees in 2010, this dispute between the parties had been bitterly litigated for well over a decade. Following a trial, the plaintiff secured a judgment against the defendant in the amount of $328,469.14, which our Supreme Court ultimately ratified in 2001. See Gagne v. Vaccaro, 255 Conn. 390, 392, 766 A.2d 416 (2001). As the trial court specifically found in ruling on the motions for appellate attorney‘s fees, the defendant thereafter engaged in “extensive litigation . . . including the appellate process, created in part by an apparent refusal to accept any decision as final and binding on him.” That context cannot be excised from the content of the defendant‘s discovery attempts, particularly when the defendant‘s notice of deposition sought, inter alia, “[a]ll retainer and fee agreements between the law firm of Hunt Liebert Jacobson P.C. or any predecessor law firm and clients retained by it to prosecute foreclosure actions for the years 2000 through present” and “[a]ll checks, receipts, writings, accounts receivable records, ledgers or other documentation pertaining to payments received with respect to [such] foreclosure action . . . .”
Given the tortured history of this case, the court reasonably could conclude that the discovery sought by the defendant was unwarranted. See Berger v. Cuomo, 230 Conn. 1, 6–7, 644 A.2d 333 (1994) (“[d]iscovery is confined to facts material to the . . . cause of action and does not afford an open invitation to delve
II
The defendant next contends that the court lacked authority to impose interest on its award of attorney‘s fees or taxable costs associated therewith. The record reveals, and the defendant does not dispute, that he did not raise any such objection before the trial court, rendering those issues unpreserved.6
“It is fundamental that claims of error must be distinctly raised and decided in the trial court.” State v. Faison, 112 Conn. App. 373, 379, 962 A.2d 860 (2009), cert. denied, 291 Conn. 903, 967 A.2d 507 (2009). Our rules of practice require a party, as a prerequisite to appellate review, to distinctly raise such claims before the trial court. See
III
The defendant‘s final claim is that the court improperly found him in contempt without first conducting an evidentiary hearing. We agree.
“Due process of law requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation. . . . Because the inability of [a party] to obey an order of the court, without fault on his part, is a good defense to a charge of contempt . . . [he has] the right to demonstrate that his failure to comply with the order of the trial court was excusable. When the conduct underlying the alleged contempt does not occur in the presence of the court, a contempt finding must be established by sufficient proof that is premised upon competent evidence presented to the trial court in accordance with the rules of procedure as in ordinary cases.” (Citations omitted; internal quotation marks omitted.) Bryant v. Bryant, 228 Conn. 630, 637, 637 A.2d 1111 (1994); see also Mekrut v. Suits, 147 Conn. App. 794, 804, 84 A.3d 466 (2014) (court‘s refusal to hold evidentiary hearing prior to finding defendant in contempt “was a violation of the defendant‘s due process guarantees“). “Whether [a party] was deprived of his due process rights is a question of law, to which we grant plenary review.” (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 489, 500, 970 A.2d 570 (2009) (indirect contempt hearing).
It is undisputed that the court did not conduct an evidentiary hearing in the present case prior to finding the defendant in contempt. Rather, the court relied
The appeal is dismissed as to the recusal issue. The judgment in AC 32830 is reversed and the case is remanded for an evidentiary hearing on the plaintiff‘s August 19, 2010 motion for contempt. The judgment in AC 32247 is affirmed in all other respects.
In this opinion the other judges concurred.