STAMFORD HOSPITAL v. CHAIM SCHWARTZ ET AL.
AC 40870
Appellate Court of Connecticut
May 21, 2019
Lavine, Prescott and Elgo, Js.
Argued February 4—officially released May 21, 2019
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Syllabus
The plaintiff hospital brought an action, pursuant to statute (
Procedural History
Action to collect a debt, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the matter was referred to an attorney trial referee, who filed a finding of facts and recommended judgment for the plaintiff; thereafter, the trial court, A. William Mottolese, judge trial referee, rendered judgment for the plaintiff; subsequently, the attorney trial referee filed a supplemental memorandum of decision; thereafter, the court granted the plaintiff‘s motions for a special finding of bad faith and for attorney‘s fees and awarded the plaintiff attorney‘s fees, and the defendants appealed to this court. Affirmed.
Vimala Ruszkowski, with whom, on the brief, were Eric J. Stockman and Simon I. Allentuch, for the appellee (plaintiff).
Opinion
LAVINE, J. This appeal arises from the defendant parents’ refusal to pay for medical care and treatment rendered to their minor child by the plaintiff hospital and the transparently disingenuous machinations they employed in an effort to avoid liability for the debt. We affirm the judgment of the trial court.
The self-represented defendants, Chaim Schwartz and Rena Gelb,1 appeal from the judgment of the trial court rendered in favor of the plaintiff, Stamford Hospital. On appeal, the defendants have raised twenty-three claims challenging the underlying factual findings of the attorney trial referee (referee)2 and the legal conclusions of the trial court. In response, the plaintiff argues that there are only two issues relevant to the appeal: were the defendants indebted to the plaintiff and did they exhibit bad faith in defense of the action. We
The following facts, as found by the referee, the court‘s legal conclusions, and the procedural history are relevant to our resolution of the defendants’ appeal. The plaintiff commenced the present action against the defendants on January 21, 2015. In count one of its two count complaint, the plaintiff alleged that, at the request of the defendants, it provided medical services to their minor child from March 5 to March 6, 2013. The child resided in the defendants’ home, and, therefore, pursuant to
The parties tried the case to the referee pursuant to
The referee found the testimony of the plaintiff‘s witnesses to be overwhelming with detail regarding the services rendered and their cost, including the medical and insurance review of the costs assessed to the defendants. According to Letitia Borras, a pediatrician, the medical treatment provided was necessary and performed as a standard course of action given the symptoms with which the child presented. The procedures were reviewed with Gelb, who did not object to them. According to Cecelia Rasines, the plaintiff‘s billing rates are audited and determined by the defendants’ insurer and are compared with rates charged for similar treatment by other medical institutions. Nurse auditors audited the defendants’ bill by comparing the billing rates and services rendered to the medical records and found the billing statement was accurate.8
The defendants both testified. When counsel for the plaintiff questioned Gelb about her responsibility to pay for the services rendered to her child, Gelb responded that she was not certain that she was the child‘s biological mother because, although she had given birth, she was not with the child constantly throughout her maternity stay. She, therefore, could not confirm that the child she took home was, in fact, the child to whom she had given birth. Thereafter, the referee questioned Gelb whether her prior testimony regarding her uncertainty as to whether she was the child‘s biological mother was truthful. The referee found that “Gelb admitted lying on the witness stand and committing perjury, stating that the minor child is in fact her biological child and that she only testified of her uncertainty as a method of assisting both of the defendants against the plaintiff‘s claims.”
As to the child‘s medical care, Gelb testified that she had not consented to certain procedures before they were performed, but she admitted that the child‘s pediatrician explained the procedures to her, including the need for a computerized axial tomography scan given the child‘s seizures. Gelb agreed to the plan and signed an authorization for the medical procedures and agreed to be responsible for costs not paid by insurance. Gelb claimed that she signed the authorization while she was under duress in the plaintiff‘s emergency department. The plaintiff placed into evidence documents Gelb had signed for the services rendered to the child in the present matter and for the maternity services the plaintiff had provided to her when her children were born. Gelb admitted to having signed each of the documents that evidenced her acceptance of responsibility for the child.9
The defendants did not pay for the medical services rendered to the child because they claimed the services were not necessary. They sent a letter to the plaintiff disputing its bill and to the state Department of Public Health (department). Schwartz received a telephone call from someone at the department advising him that the department had performed a full investigation and “‘everything was found to be [okay].‘” According to Schwartz, the present case was not the first billing dispute in which he has been involved. In other instances in which he did not pay, the matter remained in collection for a period of time, and then the business “simply [wrote] it off.” He did not think that the present matter would result in litigation.
With respect to their special defense of accord and satisfaction, the defendants put three documents into evidence. The documents demonstrate that they had paid $112.48 toward the outstanding balance they owed the plaintiff. They sent the plaintiff a correspondence with the payment, stating that the amount was in full satisfaction of the outstanding balance. The defendants argued that by accepting the payment, the plaintiff forgave the remaining balance due under the law of accord and satisfaction.
The referee set out the relevant provisions of
On the basis of his factual findings, the referee concluded that the plaintiff had established that there was no legitimate basis for the defendants to fail to pay the plaintiff the balance of the moneys owed for the services rendered to the child. The referee recognized that the trier of fact may accept or deny all or part of any testimony from a witness. He found that Gelb‘s perjured testimony and her subsequent admission of the same, degraded her testimony. The referee was “strained to accept any testimony provided by either defendant as truthful,” as both of the defendants admitted to lies and deceitful actions under the guise of trial strategy or their lack of knowledge of trial procedure. As to the defendants’ claim regarding the legitimacy and necessity of the medical services rendered to the child, the referee found that the defendants had failed to produce any admissible evidence that contradicted the plaintiff‘s evidence. The referee, therefore, found the defendants’ defenses to be disingenuous.
According to the referee, the defendants also failed to establish the requirements of accord and satisfaction under
The referee considered the plaintiff‘s request for statutory prejudgment and postjudgment interest.
The defendants filed an objection to the referee‘s memorandum of decision, to
The court first addressed the defendants’ challenge to the referee‘s jurisdiction. The defendants argued that when they incurred the debt, it was indefinite as to amount because neither defendant knew the cost of the plaintiff‘s services, and, therefore, the referee lacked jurisdiction to render a decision. The plaintiff countered that neither
The court explained that referees have jurisdiction over claims for unpaid hospital services.
The court recognized that our Supreme Court has acknowledged the special nature of a contract between a medical provider and the parents of a minor child. “[W]hen a medical service provider renders necessary medical care to an injured minor, two contracts arise: the primary contract between the provider and the minor‘s parents; and an implied in law contract, between the provider and the minor himself. The primary contract between the provider and the parents is based on the parents’ duty to pay for their children‘s necessary expenses, under both common law and statute. Such contracts, where not express, may be implied in fact and generally arise both from the parties’ conduct and their reasonable expectations.” (Footnotes omitted.) Yale Diagnostic Radiology v. Estate of Fountain, 267 Conn. 351, 359, 838 A.2d 179 (2004). The court, therefore, concluded that the referee had jurisdiction to adjudicate the present case.
The court noted the law controlling its review of the referee‘s decision. “Attorney [fact finders] are empowered to hear and decide issues of fact.” (Internal quota- tion marks omitted.) Beucler v. Lloyd, 83 Conn. App. 731, 735, 851 A.2d 358 (2004), appeal dismissed, 273 Conn. 475, 870 A.2d 468 (2005). In a contract action, findings of fact should be overturned only when they are clearly erroneous. See Pomarico v. Gary Construction, Inc., 5 Conn. App. 106, 112, 497 A.2d 70, cert. denied, 197 Conn. 816, 499 A.2d 1336 (1985). The court reviewed the record and found that the referee‘s numerous findings of fact were amply supported by the evidence and were not clearly erroneous, and that the principles of law that the referee applied to those facts were legally and logically correct.
As to credibility, the court noted the referee‘s findings with respect to the testimony of the witnesses and that the referee was strained to accept any testimony from the defendants as truthful. The court recognized that a finder of fact is the sole arbiter of the credibility of witnesses and the weight to afford their testimony. See, e.g., Cadle Co. v. D‘Addario, 268 Conn. 441, 462, 844 A.2d 836 (2004).
The court observed the defendants’ exceptional acumen in researching the law and fashioning legal arguments, but found that they had “overlooked” Connecticut‘s presumption of legitimacy rule, which provides
Turning to the defendants’ special defenses of accord and satisfaction, the court concluded that the referee correctly determined that the defendants’ tender of a check in the amount of $112.48 accompanied by a correspondence stating that it was payment in full satisfaction of the plaintiff‘s invoice of $8076.25 was not an accord and satisfaction for two reasons. First, the defendants intentionally sent the check and correspondence to an address that the plaintiff‘s billing statement specified was for payment, rather than to an address specified for correspondence. As a result, the plaintiff‘s personnel never saw the correspondence. Second, the defendants acted deceitfully when, during the pleading stage of the litigation, they waited more than ninety days as specified in
Given the referee‘s characterization of the defendants’ conduct as deceitful, the court identified additional support for the referee‘s rejection of the defendants’ accord and satisfaction defense. The threshold requirement of
The court made the following observations regarding bad faith. In Connecticut bad faith is defined as the absence of good faith.13 “Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, and not prompted by an honest mistake as to one‘s rights or duties, but by some interest or sinister motive. . . . Bad faith means more than mere negligence, it involves a dishonest purpose.” (Citation omitted; internal quotation marks omitted.) Habetz v. Condon, 224 Conn. 231, 237, 618 A.2d 501 (1992). “It is the burden of the party asserting the lack of good faith to establish its existence and whether that burden has been satisfied in a particular case is a question of fact.” (Internal quotation marks omitted.) Kronberg Bros., Inc. v. Steele, 72 Conn. App. 53, 63, 804 A.2d 239, cert. denied, 262 Conn. 912, 810 A.2d 277 (2002). “Courts do not generally
In the present case, the court stated that both of the defendants hold graduate business degrees and are commercially sophisticated. Regardless of the definition of bad faith, the court found that the defendants acted in bad faith in tendering $112.48 to the plaintiff and, therefore, are not entitled to the benefit of accord and satisfaction conferred by
The court next addressed the defendants’ claim that the authorization was invalid because it was an “unenforceable adhesion contract.” The court again noted the controlling legal principle. The question of unconscionability is one of law to be decided by the court on the basis of all the facts and circumstances. Iamartino v. Avallone, 2 Conn. App. 119, 125, 477 A.2d 124, cert. denied, 194 Conn. 802, 478 A.2d 1025 (1984). The court noted that “[t]he most salient feature [of adhesion contracts] is that they are not subject to the normal bargaining process of ordinary contracts, and that they tend to involve a standard form contract prepared by one party, to be signed by the party in a weaker position, [usually] a consumer, who has little choice about the terms . . . .” (Internal quotation marks omitted.) Reardon v. Windswept Farm, LLC, 280 Conn. 153, 162–63, 905 A.2d 1156 (2006). The classic definition of an uncon- scionable contract is one which no person not under delusion would make, and which no fair and honest person would accept. Smith v. Mitsubishi Motors Credit of America, Inc., 247 Conn. 343, 349, 721 A.2d 1187 (1998). This definition is divided “into two aspects of unconscionability, one procedural and the other substantive, the first intended to prevent unfair surprise and the other intended to prevent oppression.” Id.
The court explained that in Connecticut, the amount that a hospital may bill for a particular service is controlled by the “pricemaster,” citing to chapters 368z and 368aa of the General Statutes. The rates that the plaintiff may have charged the defendants for the services rendered to their child were, thus, available for public inspection.
With respect to Schwartz’ special defense that he was not a signatory to the authorization, the court next determined that Schwartz was liable under the authorization pursuant to
With respect to attorney‘s fees, the court issued an order permitting the plaintiff to file an itemized affidavit of attorney‘s fees and the defendants to object, if they wished. Thereafter, the plaintiff filed a motion for a special finding that the denials and defenses pleaded by the defendants were without merit and not brought or asserted in good faith. See
The court responded to the plaintiff‘s motion seeking a finding of bad faith, on April 13, 2017, stating that it had found bad faith as a matter of law in its decision regarding the defendants’ special defenses of accord and satisfaction, and remanded the case to the referee for a finding of whether any other acts of either or both defendants were made in bad faith and, if so, to identify those acts with particularity.15 On May 30, 2017, the referee submitted a supplemental memorandum of decision.
The referee identified the special defenses asserted by the defendants and found that all of them were pleaded in bad faith. The referee iterated his findings regarding the defendants’ credibility, which alone gave rise to an overall finding of bad faith. Nonetheless, the referee found that specific evidence of bad faith regarding the special defenses was more than abundant at trial so as to affirm his overall finding.
With respect to special defenses one, three, four, five, seven, nine, ten, and eleven,16 the referee found that prior to the
Special defenses two and six alleged, respectively, that the plaintiff‘s agents rendered one or more unnecessary and/or harmful services to the child for which the defendants should not be billed and that there was no proof that the plaintiff‘s agents performed the service for which it had billed. The referee found that there was abundant evidence that Gelb met with the child‘s pediatrician and discussed the treatment being provided. Gelb trusted the child‘s pediatrician and no physician has ever told Gelb that the care and treatment rendered to the child were unnecessary. Gelb never complained about the treatment prior to receiving the plaintiff‘s bill. The defendants, therefore, had no good faith basis to plead special defenses two and six, and as such, the referee found that the defenses were pursued in bad faith.
The referee further found that special defenses twelve, thirteen, and fourteen17 were raised and pursued without any good faith basis. Both defendants were aware of their financial responsibilities for the child. Gelb identified her signature on the authorization. Schwartz made the arrangements for his family‘s medical insurance and knew what portion of the bill insurance would pay and what portion he would have to pay. The defendants’ testimony was in sharp contrast to the special defenses. The referee, therefore, decided that it was logical to conclude that the defendants had pursued the special defenses in bad faith.
According to the referee, there was no basis for the defendants to defend the plaintiff‘s claims, and they used the judicial system as a means to avoid, or at least to delay, paying their financial obligation. Schwartz audaciously testified that he never expected the plaintiff to pursue the matter in litigation, because he had avoided financial responsibilities in the past by using similar methods. The defendants went so far as to at least raise doubt about their biological relationship to the child in a failed attempt to avoid their financial responsibility. The referee concluded that such evidence made the determination of bad faith effortless and conclusive.
The defendants objected to the referee‘s supplemental memorandum of decision. The plaintiff replied, asking the court to overrule the defendants’ objection and to order the defendants to pay attorney‘s fees. The court ruled on the defendants’ objection on September 6, 2017, noting the referee‘s findings that the defendants had acted in bad faith, that they denied being the child‘s biological parents, and that they lacked credibility.
In adjudicating the plaintiff‘s
On the basis of the referee‘s findings and its own independent examination of the record, the court concluded that the deficit in the defendants’ credibility permeated the entire proceeding. The court characterized the defendants’ testimony as “a study in prevarication, equivocation and obfuscation.” (Internal quotation marks omitted.) The primary basis for the court‘s conclusion was the defendants’ denial of parentage of the child.18
“To ensure . . . that fear of an award of [attorney‘s] fees against them will not deter persons with colorable claims from pursuing those claims, [our Supreme Court has] declined to uphold awards under the bad-faith exception absent both clear evidence that the challenged actions are entirely without color and [are taken] for reasons of harassment or delay or for other improper purposes. . . . and a high degree of specificity in the factual findings of [the] lower courts.” (Internal quotation marks omitted.) Maris v. McGrath, 260 Conn. 834, 845, 850 A.2d 133 (2004).
“[T]he standard for colorability [which] varies depending on whether the claimant is an attorney or a party to the litigation. . . . If the claimant is an attorney, a clam is colorable if a reasonable attorney could have concluded that facts supporting the claim might be established, not whether such facts had been established. . . . If the claimant is a party to the litigation, a claim is colorable, for purposes of the bad faith exception to the American rule, if a reasonable person, given his or her first hand knowledge of the underlying matter, could have concluded that the facts supporting the claim might have been established.” (Internal quotation marks omitted.) Lederle v. Spivey, supra, 174 Conn. App. 602.
“To determine whether the bad-faith exception applies, the court must assess whether there has been substantive bad faith as exhibited by, for example, a party‘s use of oppressive tactics or its wilful violations of court orders; [t]he appropriate focus for the court . . . is the conduct of the party in instigating or maintaining the litigation.” (Internal quotation
With respect to the colorability prong, the court framed the issue as whether “the defendants’ conduct in denying the parentage of their child while under oath in order to defeat legitimate claims made by the plaintiff for medical services rendered to their child constitute a colorable defense to the action? The answer depends upon whether a reasonable person, given his or her firsthand knowledge of the underlying matter could have concluded that the facts supporting the claim of nonparentage might have been established.” The reasonable person test requires a determination of what “a reasonable person of honest intentions would know or believe under the facts of the case.” State v. Lenczyk, 1 Conn. App. 270, 271, 470 A.2d 1240 (1984).
Because the defendants were the biological parents of the child, the court found that there was “no one in the world who could or would have known the underlying facts of parentage better than [they].” No reasonable person acting with honest intentions could have concluded that the child was not the defendants’ child. The defendants acted with a dishonest purpose when they denied paragraph 2 of count one of the complaint, which alleged that they were the child‘s parents. Their denial is even more “poignant” when it is viewed in the context of the common-law presumption of legitimacy that provides that a child born in wedlock is presumed to be the issue of the mother and her husband. See Weidenbacher v. Duclos, supra, 234 Conn. 63. Coupled with the presumption of legitimacy,
Connecticut courts historically have imposed sanctions on parties for untruthful pleading. A plea of general denial to material allegations of the complaint that the defendant knew to be true subjects a litigant to pay expenses incurred to establish the truth. See Hatch v. Thompson, 67 Conn. 74, 76, 34 A. 770 (1895). In Jennings Co. v. DiGenova, 107 Conn. 491, 494, 141 A. 866 (1928), our Supreme Court held that the defendant should have been charged with the plaintiff‘s reasonable expenses for untruthfully pleading “denial of a fact without reasonable cause.” The rules of practice similarly address the subject. See
The court found that the defendants’ disavowal of their previous acknowledgement of the child‘s parentage to avoid a debt is counter to the accepted norms of a civilized world. The court noted that in a termination of parental rights case instituted by a child‘s father, our Supreme Court denounced the practice, stating: “It would be anathema for our law to allow parents to terminate voluntarily their parental rights solely for the purpose of evading or relieving [themselves] of responsibility to pay child support.” (Internal quotation marks omitted.) In re Bruce R., 234 Conn. 194, 200, 662 A.2d 107 (1995). The trial court found that in the present case, the defendants had used the child‘s parentage as a way to avoid paying a
The trial court stated that, under
By way of contrast, the court noted the defendants’ first special defenses that the plaintiff‘s bill was unreasonably high, which reflected a mental state that is not uncommon to the average patient who receives a multipage, itemized bill with a surprisingly high total. The first special defense, therefore, was colorable. The defendants, however, failed to prove their defense that the plaintiff‘s charges were unreasonable. Reasonableness is a question of fact for the trier of fact. The court found that the plaintiff proved the reasonableness of its bill. See Andrews v. Gorby, 237 Conn. 12, 23, 675 A.2d 449 (1996) (reasonableness of compensation requested proved by preponderance of evidence).
In their second special defenses, the defendants pleaded that the services rendered by the plaintiff were unnecessary and/or harmful. The court concluded that there was no basis for the defendants to have pleaded such a special defense because there were no facts to support it.
In their fourth special defenses, the defendants pleaded that the plaintiff provided false or misleading information. The court found no facts to support the pleading or credible evidence to support the defendants’ claim.
The defendants’ fifth special defenses alleged that the plaintiff failed to disclose the amount it would charge for the services rendered to the child. Other than the statutory obligation to post its charges pursuant to
The seventh special defenses asserted that the services rendered by the plaintiff could not be identified because the bill was “not written in plain English.” The court found no factual support for such a defense, and the defendants presented no evidence of a statutory or regulatory requirement to that effect.
The court previously had addressed the special defenses of accord and satisfaction but added that it is a well recognized defense. The defendants’ use of it, however, solely as an artifice of avoidance, was deceitful and without color when considered with the defendants’ other meritless defenses.
The twelfth special defenses alleged that Gelb had never received a bill for the services the plaintiff rendered to the child. The court found the special defense to be a falsehood. The defendants testified that they not only received the bill but also took affirmative action calculated to avoid paying all but a miniscule amount of the debt. The falsehood was perpetrated for no other purpose than to avoid paying the bill. The defense, therefore, was without color.
With regard to the defendants’ fourteenth special defenses that Schwartz did not sign the authorization and, therefore, could not be held liable, the court concluded that it lacked any indicia of color. In view of the defendants’ extraordinarily thorough research, the court found it incredible that they missed the most basic principle governing a parent‘s financial responsibility for a child.
Having concluded that the referee‘s findings as to whether the defendants’ special defenses were colorable were amply supported by the evidence, the court moved to the second prong of the test set
“Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one‘s rights or duties, but by some interest or sinister motive. . . . Bad faith means more than mere negligence; it involves a dishonest purpose.” (Internal quotation marks omitted.) De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 433, 849 A.2d 382 (2004). The definition of bad faith in Maris is somewhat different: “To determine whether the bad faith exception applies, the court must assess whether there has been substantive bad faith as exhibited by, for example, a party‘s use of oppressive tactics or its wilful violations or court orders; [t]he appropriate focus for the court . . . is the conduct of the party in instigating or maintaining the litigation.” (Internal quotation marks omitted.) Maris v. McGrath, supra, 269 Conn. 847. In cases involving debt collection avoidance, a bankruptcy court looks to the totality of the circumstances and may consider a wide range of factors, including “the nature of the debt . . . the timing of the [bankruptcy] petition; how the debt arose; the debtor‘s motive in filing the petition; how the debtor‘s actions affected creditors; the debtor‘s treatment of creditors both before and after the petition was filed; and whether the debtor has been forthcoming with the bankruptcy court and the creditors.” (Internal quotation marks omitted.) In re Meyers, 491 F.3d 120, 152 (3d Cir. 2007). The court determined that most of the factors applied to the defendants.
The court concluded that, under any definition, the defendants had acted in bad faith. Under the De La Concha of Hartford, Inc., definition, the defendants’ refusal to fulfill their contractual obligation was not prompted by an honest mistake as to their rights or duties. Rather, they carefully contrived a scheme prompted by the dishonest purpose to avoid a financial obligation by lying under oath and asserting defenses that bear no indicia of color. The court agreed with the referee that the “defendants’ prevarications and obfuscation permeated the entire trial and infiltrated their pleadings.” The court, therefore, specifically found that the special defenses identified in its memorandum of decision were without merit and that they were not prompted by an honest mistake as to either the defendants’ rights or duties.
The court turned to the plaintiff‘s request for attorney‘s fees. The defendants argued that the total attorney‘s fees that may be awarded to the plaintiff could not exceed 15 percent of the judgment pursuant to
In Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 69–72, 689 A.2d 1097 (1997), our Supreme Court construed the scope of
The court in the present case, relying on its discussion of Rizzo, stated “from the language of subsection (b) of
The plaintiff‘s counsel filed an affidavit for attorney‘s fees seeking a total of $34,082.20. The affidavit is itemized, identifies each attorney who performed a service, provides the attorney‘s respective hourly rate, describes the service, and assigns a time factor in hours and minutes, and the corresponding cost. The hourly rate for each attorney ranged from $175 to $265 per hour, with most entries at $185. The defendants objected to the fees on several grounds.
Schwartz disclaimed liability because (1) he was not contractually obligated to pay and (2) there is no statute that requires a spouse to pay another spouse‘s attorney‘s fees. The court referred to its prior explanation as to why Schwartz is responsible to pay for the child‘s medical care pursuant to the authorization signed by Gelb. As to the second reason, the court found it to be an attempt to distinguish Schwartz’ statutory liability for the child‘s medical care from interspousal liability for attorney‘s fees for which there is no liability in the present context. The court found the argument to be disingenuous, as it purposefully overlooks parental responsibility fixed by statute.
The defendants also challenged the reasonableness of the attorney‘s fees requested. The court held an evidentiary hearing
The defendants also argued that the amount of attorney‘s fees sought was disproportionate to the amount in controversy. The court acknowledged that disproportionality of legal fees is one of the many factors that a court is required to consider in assessing whether an attorney‘s fee is reasonable. See Rules of Professional Conduct 1.5. Cases discussing the propriety of awarding disproportionate fees focus on the amount recovered in comparison to the amount claimed for fees. See, e.g., Simms v. Chaisson, 277 Conn. 319, 332–34, 890 A.2d 548 (2006). In the present case, the plaintiff recovered the entire amount claimed.
The court found the 241.6 hours of time the plaintiff‘s attorneys devoted to the present case to be disproportionate to the amount recovered by any ordinary assessment. Although the trial itself took less than two days, there were 248 entries in the docket, which was greatly disproportionate to the average activity in a similar case. The defendants complained that the plaintiff was represented by two attorneys at trial. The court stated that this was no ordinary collection matter, but one that was overburdened with “creative” defenses and objections, as well as excessive pleading, and that the self-represented defendants transformed a relatively straightforward collection case into a “pitched legal battle.” See Rana v. Terdjanian, 136 Conn. App. 99, 117, 46 A.3d 175, cert. denied, 305 Conn. 926, 47 A.3d 886 (2012). The court considered the foregoing factors in addition to those enumerated in rule 1.5 of the Rules of Professional Conduct.
“[When determining] reasonableness of requested attorney‘s fees . . . more than [a] trial court‘s mere general knowledge is required for an award of attorney‘s fees. . . . The burden of showing reasonableness rests on the party requesting the fees, and there is an undisputed requirement that the reasonableness of attorney‘s fees and costs must be proved by an appropriate evidentiary showing. . . . [T]here 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.” (Internal quotation marks omitted.) Gagne v. Vaccaro, 118 Conn. App. 367, 371–72, 984 A.2d 1084 (2009). A party need not present expert testimony regarding attorney‘s fees. William Raveis Real Estate, Inc. v. Zajaczakowski, 172 Conn. App. 405, 424, 160 A.3d 363 (2017). The court properly may rely on a financial affidavit, as well as its own knowledge and involvement with the trial, to ascertain reasonable attorney‘s fees. Id.
The defendants have raised twenty-three claims on appeal. On the basis of our thorough review of the record, we conclude that none of the claims is meritorious and most of them are not reviewable, as the record is inadequate for review, or the claim was not preserved or adequately briefed, or is inappropriate as this court does not, sua sponte, look for reasons to reverse the judgment of the trial court.
In conducting our examination of the record and the memoranda of decision written by the referee and trial court, we are mindful of the applicable legal principles and standards of review. “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 the . . . attorney trial referees. . . . This court has articulated that attorney trial referees and [fact finders] share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court. . . .
“The factual findings of a[n] [attorney 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.) LPP Mortgage, Ltd. v. Lynch, 122 Conn. App. 686, 692, 1 A.3d 157 (2010).
“Our standard of review concerning a trial court‘s findings of fact is well established. If the factual basis of the court‘s decision is challenged, our review includes determining whether the facts set out in the memorandum of decision are supported by the record or whether, in light of the evidence and pleadings in the whole record, those facts are clearly erroneous. . . . Further, a court‘s inference of fact is not reversible unless the inference was arrived at unreasonably.” (Internal quotation marks omitted.) Stein v. Tong, 117 Conn. App. 19, 24, 979 A.2d 494 (2009).
“The trial court‘s legal conclusions are subject to plenary review. [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) Hartford Fire Ins. Co. v. Werner, 91 Conn. App. 685, 687–88, 881 A.2d 1065, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005).
It is well established that appellate courts “review the trial court‘s decision to award attorney‘s fees for abuse of discretion. . . . This standard applies to the amount of fees awarded . . . and also to the trial court‘s determination of the factual predicate justifying the award. . . . Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court‘s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our]
“Connecticut adheres to the American rule, which provides that attorney‘s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception. . . . When a contract expressly provides for the recovery of reasonable attorney‘s fees, an award under such a clause requires an evidentiary showing of reasonableness. . . . A trial court may rely on its own general knowledge of the trial itself to supply evidence support of an award of attorney‘s fees. . . . The 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. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law . . . .” (Citation omitted; internal quotation marks omitted.) LPP Mortgage, Ltd. v. Lynch, supra, 122 Conn. App. 702.
On the basis of our extensive review of the record and examination of the well reasoned memoranda of decision of the referee and trial court, we conclude that the record supports their findings that the defendants are indebted to the plaintiff and that they exhibited bad faith throughout the litigation. This is the rare case in which the arguments put forth are so preposterous, audacious, and transparent, and the attempt to avoid payment so obvious, that a finding of bad faith is compelled. Above all else, credibility determinations are to be made by the finder of fact who may accept all, some, or none of the testimony of a witness. See Cusano v. Lajoie, 178 Conn. App. 605, 609, 176 A.3d 1228 (2017). The referee acted well within his authority to find by a preponderance of the evidence that the defendants were untruthful. See Kaczynski v. Kaczynski, 294 Conn. 121, 126, 981 A.2d 1068 (2009) (preponderance of evidence usual standard in civil case). The defendants testified that they were uncertain of the child‘s parentage despite the overwhelming contrary circumstantial evidence. Their behavior in predicating their defense on such a denial is deeply offensive to the norms of civil society. Accordingly, because the record supports the findings of the referee and the court that the defendants acted in bad faith, the court‘s decision to award attorney‘s fees is legally and logically correct. For the foregoing reasons, the defendants’ appeal fails.
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
“The care and treatment of your [child] has been reviewed by the Chair of Emergency Medicine, Chair of Pediatrics and the Director of Maternal-Child Health. . . .
“In your case, our investigation shows that your bill was calculated correctly and in accordance with the contract you have with your insurance provider. The amount on your bill is the amount for which you are responsible for the service(s) or procedure(s) you received, and reflects discounts your insurance provider has negotiated with us.”
Paragraph 4 of the patient authorization and agreement that Gelb signed for the 2009 and 2011 child birth admissions state the same.
“(b) Unless subsection (c) applies, the claim is discharged if the person against whom a claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim. . . .” See footnote 11 of this opinion.
“[The Plaintiff‘s Counsel]: Good afternoon, Ms. Gelb. Isn‘t it true that you are the mother of [the child]?
“[Gelb]: I don‘t know. [The child] is the child that lives with me, but I was not with [the child] all the time in the hospital after I gave birth, so I‘m not sure if [the child] is the child I gave birth to.
“[The Plaintiff‘s Counsel]: Okay, so you‘re stating here under affirmation, that you don‘t know whether you‘re the mother of [the child]?
“[Gelb]: Correct.
“[The Plaintiff‘s Counsel]: You gave birth to [the child], isn‘t it true that you gave birth to [the child] at Stamford Hospital in August, 2011?
“[Gelb]: I gave birth to a [child] at Stamford Hospital.
“[The Plaintiff‘s Counsel]: If you‘re uncertain that [the child] is your child, have you made any efforts to locate a child that could potentially be yours rather than [the child]?
“[Gelb]: No.
* * *
“[The Referee]: Okay. Are you saying you don‘t know because you are unaware as to whether the child is the subject matter of this litigation is actually yours?
“[Gelb]: Correct.
“[The Plaintiff‘s Counsel]: You called [the child] and acknowledge [the child] as that for all other purposes and all other situations, except this litigation. Correct?
“[Gelb]: Correct.
“[The Plaintiff‘s Counsel]: And you are doing that because you think if you cast some doubt on whether you are the parent of the [child], that will absolve your duty to pay for [the child]. Correct?
“[Gelb]: Correct.”
The court then quoted the following examination of Schwartz by the plaintiff‘s counsel as to his past conduct, his outright denial of paternity, his equivocation, and the reason and justification for his denying that the child is biologically his:
“[Schwartz]: There were other providers that I owed, and I refused to pay them, and they stopped bothering me for collection because I disagreed with them. . . .
“[The Plaintiff‘s Counsel]: Mr. Schwartz, isn‘t it true that up until this point you denied knowledge under oath at your deposition and in court papers about whether you‘re the father of [the child]?
“[Schwartz]: I denied knowledge, but I explicitly stated that I believe that [the child] is [my child]. That I file tax returns claiming [the child] as a dependent, that [the child] is on my birth certificate. That in all respects, aside from when I am under oath, that I claim that [the child is mine]. . . . And my understanding in doing this, is that I—there is—there‘s nothing wrong with—ok.
“And my understanding in doing this is that there is a difference in court—and this may be completely wrong because I‘m pro se—but in court, the standard is knowledge, not belief. Now that may not be true, and if it‘s not true, so then it doesn‘t matter. So then [the child] is [mine] if knowledge is belief. If the—if the standard is knowledge, then—then [the child] is not [mine] or —I‘m sorry—[the child is] not—it‘s not that [the child] is not my [child], I don‘t know if she is my [child], I never had a paternity test. Now, I also believe, and this may not be true, that it‘s—OK to cast doubt and to require the opposing party—to prove that [the child] is my [child], if the standard is knowledge.
“[The Plaintiff‘s Counsel]: Isn‘t it true that you have absolutely no evidence that would support the notion that [the child] is not your biological [child]?
“[Schwartz]: That‘s correct.”