Opinion
The self-represented defendant, Jacek I. Smigelski,
The jury reasonably could have found the following facts. In May or June, 2004, Stanley Kosiorek spoke with attorney John Matulis regarding a probate matter. His father, Stanislaw Kosiorek, had died
The case went to a judicial pretrial, and a court annexed mediation occurred in late 2005 or early 2006. Stanley Kosiorek and his siblings offered $25,000 in exchange for a return of the house to the estate. This offer was rejected, as Bronislawa Kosiorek sought to receive $45,000. On March 21, 2006, Matulis sent a letter to Stanley Kosiorek and his siblings detailing the options following the unsuccessful mediation. In this letter, Matulis stated that Bronislawa Kosiorek would not accept less than $45,000 in exchange for transferring the house to the estate. Ultimately, Matulis made the following recommendation: “It is my belief that if this matter could be settled along the lines recommended by Judge [Richard A.] Robinson and [Bronislawa Kosi-orek] be paid no more than $40,000.00 that the settlement would be far and away in the best interests of the family.”
A trial was scheduled to begin in early August, 2006. At some point prior to the trial date, Matulis learned that Stanley Kosiorek had filed an application with the Probate Court seeking permission to sell the house to his son. Matulis informed him that the estate could not sell an asset that it did not own. A few days later, Stanley Kosiorek informed Matulis that he and his siblings had decided to hire a different lawyer. Matulis filed a motion to withdraw his appearance and sent a final bill. For the work completed over a two year time period, Matulis’ law firm was paid $7732 by the children of the decedent.
In June, 2006, Stanley Kosiorek hired the defendant to represent the estate in the action against Bronislawa Kosiorek. Stanley Kosiorek signed afee agreement both in his individual capacity and as executor of the decedent’s estate. The fee agreement consisted of two pages; however, Stanley Kosiorek was shown only the second page that he had signed. The first page of the agreement set forth the fee arrangement as follows: “It is agreed that the fee for legal services rendered by [the defendant] will be based on an hourly charge of $225.00 per hour or it will be contingent upon recovery of benefits and shall be ONE-THIRD of the gross judgment or settlement, [whichever] amount is greater.” Stanley Kosiorek, not having seen the paragraph, believed that the defendant’s fee would be calculated on a hourly basis of $250 per hour. The defendant
Prior to trial, the estate and Bronislawa Kosiorek settled the case. In exchange for $35,000, Bronislawa Kosiorek agreed to quitclaim the deed to the property to the estate.
After the estate became the owner of the property, it entered into a sales agreement with Stanley Kosior-ek’s son and daughter-in-law. Although they agreed to purchase the property for $170,000, the son and daughter-in-law were unable to obtain a mortgage. To complete this transaction, the estate raised the price of the property to $212,500. Stanley Kosiorek and his siblings agreed to make a gift of equity of $42,500 to facilitate the sale of the property. Following approval of this transaction by the Probate Court, the defendant prepared a deed to transfer the property in exchange for $212,500. At the closing on December 21, 2006, the estate received $155,300.82.
Five days later, Stanley Kosiorek went to the defendant’s office and received a disbursement letter. The defendant calculated his fees as follows: the value of the property was $257,000
Stanley Kosiorek left the defendant’s office “[speechless and stunned . . . .’’He spoke with Kazimierz Kosi-orek and then scheduled a meeting with the defendant. The defendant failed to appear at this meeting, and Stanley Kosiorek obtained new counsel. In a letter sent to the defendant, the new attorney, William J. Sweeney, Jr., indicated that he been retained to represent the estate with respect to the lawsuit against Bronislawa Kosiorek as well as any and all matters in the Probate Court. The letter requested the defendant to turn the file over, and advised that there would be claims against the defendant for legal and ethical breaches, namely, settling the lawsuit of the estate without Probate Court approval and charging an unreasonable fee. Finally, the letter requested that the fees retained by the defendant be placed in escrow.
Stanley Kosiorek filed an inventory and accounting in the Probate Court on behalf of the estate. In the administrative expenses, he listed the defendant’s fee of $70,833.33. In January, 2007, a hearing was held regarding the defendant’s fee. In May, 2007, the Probate Court issued a decree disallowing the defendant’s fee, finding it excessive and
On July 6, 2007, the plaintiff filed an application for aprejudgment remedy to secure $54,833.33 of the defendant’s assets to prevent him from fraudulently transferring or disposing of assets. The court granted this application on December 20, 2007. On December 28, 2007, the plaintiff commenced this action. On September 17, 2008, the plaintiff, pursuant to General Statutes § 52-102, moved to cite in 122 Main Street as a party defendant. The court granted this motion on December 12, 2008.
On October 9, 2009, the plaintiff filed a revised nine count complaint. Specifically, it alleged the following causes of action against the defendant: (1) breach of contract, (2) breach of good faith and fair dealing, (3) unjust enrichment, (4) breach of fiduciary duty, (5) violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and (6) civil conversion in violation of General Statutes § 52-564. The plaintiff also alleged two counts against 122 Main Street: (1) fraudulent conveyance and (2) violation of the Uniform Fraudulent Transfer Act, General Statutes § 52-552a et seq. The defendant responded with an answer, special defenses and a counterclaim. With respect to the two counts directed against it, 122 Main Street filed an answer.
Both the defendant and 122 Main Street filed motions for a directed verdict. The court concluded that the plaintiff had failed to present proof required to prevail on the two causes of action relating to 122 Main Street and therefore directed the verdict in its favor. The court reserved judgment on the defendant’s motion. The jury returned a verdict in favor of the plaintiff with respect to all five counts. Additionally, the jury found that the plaintiff was entitled to punitive damages and attorney’s fees under the CUTPA count, and 10 percent interest as to the civil conversion count. The jury awarded damages in the amount of $54,833.33. In accordance with this verdict, the court calculated the interest award to be $20,754.74 for a subtotal of $75,587.74. The court then trebled that amount for a total damages award of $226,762.20.
The plaintiff then filed a motion for punitive damages and attorney’s fees pursuant to the CUTPA count. The court declined to award any punitive damages. The court did, however, award attorney’s fees in the amount of $68,011.50 and costs in the amount of $3684.59, for a total of $71,696.09. The total amount awarded to the plaintiff was $298,458.29. These appeals followed. Additional facts will be set forth as necessary.
I
DEFENDANT’S APPEAL
The defendant first claims that the court improperly determined that Stanley Kosiorek, individually, was not a necessary and indispensable party. Specifically, he argues that because his fee was earned after the death of Stanislaw Kosiorek, Stanley Kosiorek personally incurred the debt caused by the defendant’s disallowed legal fees. In other words, according to the defendant, Stanley Kosiorek “must personally reimburse the estate for the disallowed fee or litigate the issue of the fees with the defendant, which he did not do.” We are not persuaded.
This court has stated that “when an action cannot be disposed of properly on its merits because of the absence of an indispensable party, the defect is not waivable and can be addressed by this court even if not timely raised by the parties. See W. G. Glenney Co. v. Bianco,
The defendant appears to argue that Stanley Kosi-orek, individually, is liable to the estate for the defendant’s fee
n
The defendant next claims that the court improperly denied his motion for a directed verdict. Specifically, he argues that (1) expert testimony was required as to the issue of whether the legal fees charged were reasonable, (2) the plaintiff failed to prove damages, (3) there was no evidence to support the CUTPA count and (4) there was no evidence to support the civil conversion count. We are not persuaded.
“Our standard of review of the court’s refusal to grant [motions for directed verdicts and to set aside verdicts] requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony. . . . The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached [its] conclusion. . '. . While it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation. ... If the evidence would not reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury. . . . Our standard of review, where the trial court’s action on a motion to set aside a verdict is challenged, is whether the trial court clearly abused its discretion. . . . The decision to set aside a verdict is a matter within the broad legal discretion of the trial court and it will not be disturbed unless there has been a clear abuse of that discretion.” (Internal quotation marks omitted.) Sutcliffe v. FleetBoston Financial Corp.,
The defendant first argues that expert testimony was required on the issue of his legal fees. Specifically, he contends that the issue of the fees charged in this case was outside the common knowledge of the members of the jury, and, therefore, expert testimony was required. The plaintiff counters that the court properly determined that, under the circumstances of this case, expert testimony was not required. We agree with the plaintiff.
Underlying the various causes of actions set forth in the revised complaint was the need for the jury to determine whether the legal fees charged to the estate were reasonable.
We agree with the trial court that expert testimony was not required in this case. The jury heard testimony from Matulis, who had worked on the dispute between the estate and Bronislawa Kosiorek for over two years, had negotiated a settlement that was $10,000 more than the one eventually achieved by the defendant and had charged the estate approximately $7700. The jury also was presented with the decree of the Probate Court, which determined that the defendant’s fee was unreasonable.
B
The defendant next argues that the plaintiff failed to prove damages. Although the defendant’s claims are not entirely clear from his brief, he appears to claim that (1) the plaintiff failed to present expert testimony as to the amount of damages and the duty of attorneys to charge only reasonable fees, (2) the plaintiff should have been estopped from claiming damages after having received the benefits of the defendant’s legal services and (3) because the plaintiff acknowledged a valid contract, the terms of the contract, including the issue of legal fees, must also be valid. We are not persuaded.
As we have noted, the plaintiff introduced evidence, via the Probate Court decree, that a reasonable fee in the present case was $15,000, plus $1000 for expenses. The defendant had paid himself a fee of $65,833.33. The defendant had been paid a $5000 retainer, and, therefore, the estate was damaged in the amount of $54,833.33. Additionally, we note that “[a] fee agreement is not self-executing. It does not and cannot authorize an attorney to violate his fiduciary obligation to his client.” Disciplinary Counsel v. Smigelski,
C
The defendant next argues that there was no evidence to support the CUTPA count. Specifically, he contends again that expert testimony was required to establish the unreasonable nature of his fees. We need not revisit this contention. The defendant also maintains that there were no allegations or proof of any misleading or unfair conduct. We are not persuaded.
“CUTPA provides in relevant part that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. General Statutes § 42-110b (a). Connecticut courts, when determining whether a practice violates CUTPA, will consider (1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen). . . . Thus, a violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy. . . . Whether a practice is unfair and thus violates CUTPA is an issue of fact. . . . The facts found must be viewed within the context of the totality of circumstances which are uniquely available to the trial court. . . . Additionally, our Supreme Court has stated that [a]ll three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.” (Internal quotation marks omitted.) Ulster Savings Bank v. 28 Brynwood Lane, Ltd.,
In the present case, the plaintiff presented evidence that the defendant failed to provide Stanley Kosiorek with the entire fee agreement or to explain the nature of the contingency agreement at the time it was executed. Additionally, there was evidence that the defendant had not kept accurate time records, paid himself an unreasonable fee and refused to return the disallowed fee to the estate. “A party seeking to recover damages under CUTPA must meet two threshold requirements. First, he must establish that the conduct at issue constitutes an unfair or deceptive trade practice. . . . Second, he must present evidence providing the court with a basis for a reasonable estimate of the damages suffered.” (Internal quotation marks omitted.) Anderson v. Schoenhorn, supra,
D
The defendant next argues that there was no evidence to support the statutory theft count.
“The elements that the plaintiffs must prove to obtain treble damages under the civil theft statute, § 52-564, are the same as the elements required to prove larceny, pursuant to General Statutes § 53a-119. ... A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ... It must be shown that (1) there was an intent to do the act complained of, (2) the act was done wrongfully, and (3) the act was committed against an owner. . . . The essential cause of action is a wrongful exercise of dominion over personal property of another.” (Citations
In the present case, the plaintiff presented evidence that the defendant wrongfully withheld $54,833.33. The estate is the owner of that money. Moreover, despite the defendant’s assertion, the manner in which he assessed this fee was not valid; it was an unreasonable fee as determined by the Probate Court and later by the office of the disciplinary counsel.
Ill
The defendant next claims that the court improperly permitted the probate judge to testify as an expert witness. Specifically, he argues that “[a]llowing testimony of the judge here was error because it was clearly a back door attempt to provide an ‘expert opinion’ despite plaintiffs counsel’s disingenuous statements to the contrary.” He also contends that he was deprived of his right to cross-examination because he was not permitted to ask questions regarding the process of writing the judge’s decision.
The following additional facts are necessary for our discussion. The defendant filed a motion in limine to preclude the testimony of the Honorable Heidi Famig-lietti, judge of probate for the district of Plainville. Counsel for the plaintiff countered that Judge Famiglietti was there to testify as a fact witness, with respect to statements made by the defendant, as well as to her recollection of the probate proceedings. The court denied the defendant’s motion without prejudice.
During her testimony, Judge Famiglietti stated that she wrote a memorandum of decision in conjunction with her decree as to the final accounting filed by Stanley Kosiorek. In this decree, Judge Famiglietti found that “the attorney fees [for the defendant] are excessive and unreasonable. A fee to [the defendant] of $15,000.00 plus $1,000.00 for reimbursement of costs is reasonable.” During cross-examination, the defendant asked whether Judge Famiglietti had any assistance in writing her decision. The court sustained the plaintiffs objection, and permitted the defendant to make an offer of proof outside of the presence of the jury.
The defendant set forth the following: “I was at the Probate Court maybe a year or two ago, inspected the file, the entire file, and found several drafts of the memorandum of decision marked up and with the facts— facts as to [the] Probate Court administrator’s office in Hartford.” The trial court then determined that the question at issue, stated succinctly, was whether Judge Famiglietti had any assistance in writing her decision. The court sustained the objection and stated that “going behind a judge’s decision . . . is just like the A number one thing that people are not allowed to do. I mean, that’s going into the thought process of a judge in issuing a decision, and that is not something that is allowed ever, ever.”
We have carefully reviewed the testimony of Judge Famiglietti. Her testimony was limited to that of a fact witness. She
As to the defendant’s claim that the court improperly limited his cross-examination, we find it meritless. “The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. . . . Furthermore, [t]o establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon [the] cross-examination were clearly prejudicial. ... In order to establish reversible error on an eviden-tiary impropriety, however, the defendant must prove both an abuse of discretion and a harm that resulted from such abuse.” (Internal quotation marks omitted.) Florian v. Lenge,
IV
The defendant next claims that the court improperly instructed the jury. Specifically, he argues that the court “improperly failed to adapt the jury charge to the issues, pleadings and evidence introduced at trial. The jury instructions are wrong in toto.” Because of the inadequacy of his analysis of this audaciously expansive claim and the evidence before the jury, we are not convinced.
“Our standard of review concerning claims of instructional error is well
In his brief, the defendant sets forth certain general principles regarding jury instructions. He then argues that the court’s instructions failed to guide the jury because the instructions failed to apply the general rules of law to the particular facts of this case. The defendant, however, has not provided any citation or legal analysis to support this contention. “We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Dreambuilders Construction, LLC v. Diamond,
The defendant also argues that the court improperly “instructed the jury on the rules of professional conduct governing determination of reasonableness of attorney’s fees.” Specifically, he maintains that there was no evidence for the jury to determine whether his fee was reasonable. As previously stated, this claim must fail. The trial court was required to give preclusive effect to the decree of the Probate Court. See Disciplinary Counsel v. Smigelski, supra,
V
The defendant’s final claim is that the court improperly precluded certain testimony from his expert witness, Louis Evjen, a licensed real estate appraiser. He appears to argue that the court improperly prevented Evjen from offering testimony about a second appraisal he had performed in September, 2006, and that the court improperly asked Evjen about the difference between a comparative market analysis and an appraisal.
The following facts are necessary for our discussion. On March 15, 2010, the defendant disclosed Evjen as an expert as required by Practice Book § 13-4 (b) (1). The defendant indicated that Evjen would
The defendant then attempted to have Evjen testify about an appraisal completed in September, 2006, that Usted the value of the property as $254,000. Counsel for the plaintiff objected on the ground that the appraisal was not disclosed pursuant to Practice Book § 13-4, and, therefore, it should not be admitted into evidence. The court ruled that this area had not been disclosed properly, and determined that Evjen was not permitted to testify about the September, 2006 appraisal.
After the parties had completed their examination of Evjen, the court asked him about the difference between a comparative market analysis and an appraisal. Evjen responded: “A comparative market analysis usually takes into consideration a property on the market. That’s typical for a real estate — real estate agent to give you a market analysis, where an appraiser really is only dealing with the history or the sales from that neighborhood unless there’s extenuating circumstances.” He also explained that banks generally did not rely on comparative market analysis. Neither party had any follow up questions for Eyjen following his coUoquy with the court.
We begin by setting forth our standard of review. “[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . . Even if a court has acted improperly in connection with the introduction of evidence, reversal of a judgment is not necessarily mandated because there must not only be an evidentiary [impropriety], there also must be harm.” (Internal quotation marks omitted.) Szczycinska v. Acampora,
“Practice Book § 13-4 plainly requires a plaintiff to disclose: (1) the name of the expert witness; (2) the subject matter on which the expert is expected to testify; (3) the substance of the facts and opinions to which the expert is expected to testify; and (4) a summary of the ground for each opinion.” (Internal quotation marks omitted.) Klein v. Norwalk Hospital,
With respect to the defendant’s claim that the court improperly questioned Evjen regarding the difference between a comparative market analysis and an appraisal, we decline to review this unpreserved eviden-tiary claim. The defendant failed to object to the court’s questions. “It is well settled that this court will not entertain claims of evidentiary error that were not distinctly raised before the trial court.” Wilderman v. Powers,
VI
PLAINTIFFS CROSS APPEAL
In his cross appeal, the plaintiff claims that the court improperly directed the verdict in favor of 122 Main Street. Specifically, he argues that there was sufficient evidence for the jury to conclude that the transfer of the defendant’s interest in 122
The following facts are necessary for the resolution of this issue. The plaintiffs revised complaint set forth two causes of action against 122 Main Street.
The defendant testified during cross-examination that 122 Main Street, LLC, was a single member limited liability company from July 18,2001, until January, 2008. The defendant also testified that a prejudgment remedy was entered against him in the amount of $54,833.33 on December 20, 2007. At this time the defendant had lost the fees he had paid himself from the estate in a “bad deal,” and 122 Main Street was his major asset. He then transferred two thirds of his interest to Janusz and Glowka. Both were tenants of 122 Main Street, and there was no evidence that they were aware of the prejudgment remedy entered against the defendant. Each paid the defendant $25,000 in cash and gave him a note for $25,000 in exchange of a one-third share.
On October 8, 2010, 122 Main Street filed a motion for a directed verdict, and
On October 13, 2010, the court granted the motion for a directed verdict filed by 122 Main Street. The court “determined that the plaintiff has failed to present the proof that the law requires to prevail on the two claims against [122 Main Street]. There was no evidence presented as to the fair market value of the building, so any determination by the jury that the consideration was deficient would be pure speculation.”
We begin with our standard of review. “Whether the evidence presented by the plaintiff was sufficient to withstand a motion for a directed verdict is a question of law, over which our review is plenary. . . . Directed verdicts are not favored. ... A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion. ... In reviewing the trial court’s decision to direct a verdict in favor of a defendant we must consider the evidence in the fight most favorable to the plaintiff. . . . Although it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation. ... A directed verdict is justified if . . . the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party. . . . This court has emphasized two additional points with respect to motions to set aside a verdict that are equally applicable to motions for a directed verdict: First, the plaintiff in a civil matter is not required to prove his case beyond a reasonable doubt; a mere preponderance of the evidence is sufficient. Second, the well established standards compelling great deference to the historical function of the jury find their roots in the constitutional right to a trial by jury.” (Internal quotation marks omitted.) Demiraj v. Uljaj,
“A party alleging a fraudulent transfer or conveyance under the common law bears the burden of proving either: (1) that the conveyance was made without substantial consideration and rendered the transferor unable to meet his obligations or (2) that the conveyance was made with a fraudulent intent in which the grantee participated. . . . The party seeking to set aside a fraudulent conveyance need not satisfy both of these tests. . . . These are also elements of an action brought pursuant to General Statutes §§ 52-552e (a) and 52-552f (a).” (Citations omitted; internal quotation marks omitted.) Certain Underwriters at Lloyd’s, London v. Cooperman,
On appeal, the plaintiff argues that the defendant improperly transferred two thirds of 122 Main Street “in an effort to dilute his biggest asset.” The plaintiff contends that the court improperly directed the verdict because the jury reasonably
In this case, the defendant was the transferor, Janusz and Glowka were the transferees, and the interest in 122 Main Street, initially owned 100 percent by the defendant, was the subject of the conveyance.
At this point, we address the differences between the common-law cause of action for a fraudulent transfer and the statutory action under § 52-552e. In Robinson v. Coughlin,
Guided by Wieselman, we conclude that the court properly granted the motion for a directed verdict with respect to the common-law cause of action for fraudulent transfer. There was no evidence that the conveyance was done for less than fair and reasonable consideration. Likewise, there was no evidence that either Janusz or Glowka, the transferees, actively participated in a fraudulent conveyance. The jury could not have reasonably or legally reached a verdict in favor of the plaintiff with respect to his claim of common-law fraudulent conveyance. The court, therefore, properly granted the motion for a directed verdict. With respect to the claim under § 52-552e, however, there is no requirement for a fraudulent intent with respect to the transferees. See id., 599. Because there was evidence for the jury to conclude that the defendant transferred his interest with an actual intent to hinder, delay or defraud the estate, a creditor of the defendant, we conclude that the court improperly granted the motion for a directed verdict with respect to the plaintiffs § 52-552e claim.
The judgment is reversed only as to the granting of 122 Main Street’s motion for a directed verdict as to the count of the revised complaint alleging a violation of § 52-552e and the case is remanded for further proceedings according to law. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
Notes
According to the judicial branch website, the defendant was admitted to practice law in Connecticut on November 20, 1986. Effective March 3, 2011, the defendant was suspended from the practice of law for a period of fifteen months. See generally Disciplinary Counsel v. Smigelski,
Prior to trial, the trial court granted a motion by the plaintiff to cite in 122 Main Street Associates, LLC, as a defendant. For clarity, we refer in this opinion to Smigelski as the defendant and to 122 Main Street Associates, LLC, as 122 Main Street.
Stanislaw Kosiorek died on May 16, 2004.
Stanley Kosiorek testified that no one in his family knew Bronislawa Kosiorek or that his father had been married for a second time.
Stanley Kosiorek was a plaintiff in both his individual capacity and as executor of the decedent’s estate. The other plaintiffs were Kazimierz Kosiorek, John Kosiorek, Diane Reynolds, Helen Kosiorek, Teresa Caudillo, Krystyna Jacobson and Stanislaw Wisniewski.
Kazimierz Kosiorek issued a check for $5000 to pay the defendant’s retainer because, at that time, the estate had no money.
Kazimierz Kosiorek issued a check for $35,000 to the estate to fund the payment to Bronislawa Kosiorek.
This amount came from a comparative market analysis prepared for Bronislawa Kosiorek.
During these proceedings, the defendant provided the estate with an amended disbursement letter stating that he was entitled to one third of the $212,500, rather than the $257,000 he had initially used to calculate his fee. The defendant, however, correspondingly reduced his “courtesy discount” to $999.30.
Practice Book § 10-11 (a) provides in relevant part: “A defendant in any civil action may move the court for permission as a third party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to such defendant for all or part of the plaintiff’s claim against him or her. ...”
Practice Book § 10-39 provides in relevant part: “(a) Whenever any party wishes to contest ... (3) the legal sufficiency of any such complaint, counterclaim or cross complaint, or any count thereof, because of the absence of any necessary party or, pursuant to Section 17-56 (b), the failure to join or give notice to any interested person . . . that party may do so by filing a motion to strike the contested pleading or part thereof.
“(b) A motion to strike on the ground of the nonjoinder of a necessary party or noncompliance with Section 17-56 (b) must give the name and residence of the missing party or interested person or such information as the moving party has as to the identity and residence of the missing party or interested person and must state the missing party’s or interested person’s interest in the cause of action.”
As a result of our conclusions regarding these issues, we need not address the defendant’s claims regarding the breach of fiduciary duty and breach of good faith and fair dealing counts. Cf. Green v. Yankee Gas Corp.,
We employ the plenary standard of review with respect to this claim. See St. Onge, Stewart, Johnson & Reens, LLC v. Media Group, Inc.,
In order to assess the reasonableness of fees, several factors must be considered, including the time and labor involved, the novelty and difficulty of the questions presented and the customary fee charged in the locality. St. Onge, Stewart, Johnson & Reens, LLC v. Media Group, Inc.,
In Disciplinary Counsel v. Smigelski,
,
We also noted that “[i]t is axiomatic that, to collect a contingent fee for services rendered, an attorney must establish a nexus between fee and service. In this case, there is no such nexus between the defendant’s services and the market value, however calculated, of the Kosiorek estate. ” Disciplinary Counsel v. Smigelski, supra,
The defendant also argues that the court improperly awarded punitive damages under CUTPA. The record does not support this claim. The court stated that “the conduct by the defendant is offensive and would qualify for an award of punitive damages. . . . Absent the jury’s finding on the count of civil conversion, which provides for treble damages as well as the plaintiffs entitlement to attorney’s fees under CUTPA, the court would surely make a specific award of punitive damages. However, in light of the reasons set forth, the court will not award any further damages for the CUTPA claim.” (Emphasis added.) Accordingly, we need not review this claim because the court, in fact, did not award punitive damages pursuant to CUTPA.
General Statutes § 52-564 provides: “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”
See Disciplinary Counsel v. Smigelski, supra,
See, e.g., In the Matter of Enforcement of a Subpoena,
To the extent that the defendant challenges other aspects of the court’s instructions, we decline to review them on the basis of an inadequate brief.
The defendant described the property owned by 122 Main Street as an “office building with a parking lot attached to it for thirty-five cars. So, actually it consists of two parcels of real property. One is 21 Walnut Street, one is 122 Main Street, which is a comer of Walnut and Main.”
General Statutes § 52-552e (a) provides: “A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, if the creditor’s claim arose before the transfer was made or the obligation was incurred and if the debtor made the transfer or incurred the obligation: (1) With actual intent to hinder, delay or defraud any creditor of the debtor; or (2) without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor (A) was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction, or (B) intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his ability to pay as they became due.”
We disagree with the argument by 122 Main Street that it should not have been named a defendant in this case. On December 12, 2008, the court granted the plaintiffs motion to cite in 122 Main Street as a party defendant. The plaintiffs complaint alleges that 122 Main Street, as controlled by the defendant, was part of a fraudulent conveyance. The plaintiff also directs us to General Statutes § 34-134, which provides: “A member or manager of a limited liability company is not a proper party to a proceeding by or against a limited liability company solely by reason of being a member or manager of the limited liability company, except where the object of the proceeding is to enforce a member’s or manager’s right against or liability to the limited liability company or as otherwise provided in an operating agreement.” For these reasons, we are not persuaded by 122 Main Street’s claim.
General Statutes § 52-552e (b) provides: “In determining actual intent under subdivision (1) of subsection (a) of this section, consideration may be given, among other factors, to whether: (1) The transfer or obligation was to an insider, (2) the debtor retained possession or control of the property transferred after the transfer, (3) the transfer or obligation was disclosed or concealed, (4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit, (5) the transfer was of substantially all the debtor’s assets, (6) the debtor absconded, (7) the debtor removed or concealed assets, (8) the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred, (9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred, (10) the transfer occurred shortly before or shortly after a substantial debt was incurred, and (11) the debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.”
There was evidence that the defendant retained possession and control, albeit diminished, of 122 Main Street, he had been sued prior to the transfer of his 100 percent interest and that the transfer occurred shortly after he incurred a substantial debt.
We note that the trial court did not discuss specifically this means of establishing a fraudulent transfer. Nevertheless, because the record reveals evidence that could support a finding that the transfer was done with a fraudulent intent, the motion for a directed verdict was granted improperly. See Thomas v. West Haven,