Steiger v. J. S. Builders, Inc.Steiger v. J. S. Builders, Inc.
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The plaintiffs, Dennis Steiger and Carol Steiger, appeal from the judgment of the trial court, rendered after a bench trial, in their favor. They claim that (1) the trial court’s award of damages is against the weight of evidence and contrary to law, and (2) the trial court applied the incorrect standard in calculating the award of attorney’s fees pursuant to the contract and the Connecticut Unfair Trade Practices Act (CUTPA),
This matter pertains to a contract entered into by the plaintiffs for the purchase of land and construction of a house. In September, 1987, the plaintiffs filed an eleven count complaint against J. S. Builders, Inc., Blue Spruce Developers, Inc., Tradewind Developers, Inc., John I. Slezak, Louisette Slezak and Susan Moreau. In their complaint, the plaintiffs alleged breach of contract, breach of warranties and a violation of CUTPA and asked the court, inter alia, to pierce the coiporate veil and to award damages and attorney’s fees pursuant to CUTPA.
Subsequently, the trial court entered defaults against each defendant. The court conducted a hearing in damages, at the conclusion of which it found the defendants to be liable for damages suffered by the plaintiffs in the amount of $26,142.83. The court also found that John I. Slezak had violated CUTPA and awarded $7500 in attorney’s fees.1
The plaintiffs’ first claim, although partially couched in a challenge to the trial court’s conclusions of law, is no more than an attack on the factual findings of the court. They argue that the evidence presented at the hearing overwhelmingly established that the award of damages should have been greater.
“Our role in reviewing an appeal based on the sufficiency of the evidence is well defined. Where the claim is that the evidence produced did not satisfy the burden of proof factually, the duty of an appellate court is well established. An appeal based on the sufficiency of evidence to support a factual finding carries a legal and practical restriction to review. The function of an appellate court is to review, and not to retry, the proceedings of the trial court. . . . Further, we are authorized to reverse or modify the decision of the trial court only if we determine that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that its decision is otherwise erroneous in law. . . . It is, however, not our function to retry the case or to pass upon the credibility of witnesses. . . . Kelman v. McDonald, 24 Conn. App. 398, 400-401, 588 A.2d 667 (1991). Naughton v. Hager, 29 Conn. App. 181, 184-85, 614 A.2d 852, cert. denied, 224 Conn. 920, 618 A.2d 527 (1992).” (Internal quotation marks omitted.) Clement v. Clement, 34 Conn. App. 641, 650, 643 A.2d 874 (1994). “ ‘Where there is conflicting evidence, as claimed by the [plaintiffs], we do not retry the facts or pass on the credibility of the witnesses.’ ” Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 404, 461 A.2d 422 (1983). The probative force of conflicting evidence is for the trier to determine. Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 257, 524 A.2d 610 (1987). “In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight
The trial court was presented with conflicting evidence in the form of various expert testimony as to the resultant cost of remedying the construction defects. The court heard the witnesses, judged their credibility and, in its memorandum of decision, set out a full and thorough finding of facts, upon which it based its award of damages. After a careful review of the whole record, we are satisfied that the trial court had sufficient evidence to support its factual findings and, therefore, was not clearly erroneous in its determination of damages.
II
The plaintiffs next claim that the trial court applied the wrong standard in calculating the award of attorney’s fees pursuant to both the contract and CUTPA.2 We agree.
In its memorandum of decision, the trial court found that “the conduct of the defendant John Slezak clearly was contrary to public policy and was deceptive re: using an unlicensed plumber and that CUTPA has been violated. The plaintiffs’ claim for attorney’s fees against the corporate and individual defendants Slezak and Moreau was for $22,000 plus costs. On the basis of the cases noted above [Hernandez v. Monterey Village Associates Ltd. Partnership, 24 Conn. App. 514, 517 n.3, 589 A.2d 888 (1991), and Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)], this is clearly not warranted and would equal the damages the court is allowing [$26,142.83]. There must be some reasonable relationship to the end result and the attorney’s fees.
The trial court has discretion whether to award attorney’s fees under CUTPA and “ ‘the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done.’ ” Nielsen v. Wisniewski, 32 Conn. App. 133, 138, 628 A.2d 25 (1993), quoting Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987); see
Hernandez involved a class action brought under CUTPA, in which the plaintiff tenants alleged that the defendant owner and operator of an apartment complex was attempting to evict members of the class in violation of state and local law, the United States Housing Act of 1937, and an agreement between the defendant and the housing authority of the city of Norwalk pursuant to § 8, of the Moderate Rehabilitation Housing Assistance Payments Program,
In Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d 715, the question before the Fifth Circuit Court of Appeals concerned the adequacy of attorney’s fees awarded by the District Court in an “ ‘across-the-board’ action to remedy employment discrimination” pursuant to Title VII of the Civil Rights Act of 1964,
As under CUTPA, a District Court has discretion under Title VII to award the prevailing party reasonable attorney’s fees.
The guidelines set forth in Johnson for calculating reasonable attorney’s fees are appropriate in CUTPA litigation because, similar to Title VII, “CUTPA seeks to create a climate in which private litigants help to enforce the ban on unfair or deceptive trade practices or acts.” Hinchliffe v. American Motors Corp., 184 Conn. 607, 618, 440 A.2d 810 (1981). Our review of whether the trial court correctly applied the guidelines and set a reasonable award of attorney’s fees is limited to a consideration of whether the court abused its discretion. Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d 717.
In this case, the trial court focused on only one of the twelve enunciated guidelines—the reasonableness of the relationship between the award of attorney’s fees and the award of damages. We conclude that the trial court abused its discretion in seizing from the full panoply merely one guideline, to the exclusion and disregard of the others. To interpret the attorney’s fees provision of CUTPA so narrowly would render insignificant the legislative intent—it would neither enhance the private CUTPA remedy, nor serve to encourage private CUTPA litigation. See Hinchliffe v. American Motors Corp., supra, 184 Conn. 617.
The judgment is reversed only as to the award of attorney’s fees and costs and the case is remanded for a hearing to determine, consistent with this opinion, the amount of attorney’s fees and costs that the plaintiffs may recover.7
In this opinion the other judges concurred.
Notes
See footnote 2.
Because our ruling under CUTPA principles is dispositive, we need not consider the plaintiffs’ claim pursuant to contract theory.
The trial court’s finding that John Slezak violated CUTPA raises an issue as to the court’s scope of authority at the hearing in damages. In this case, the court entered defaults as to each defendant, causing the case to proceed to a hearing in damages. Subsequent to the defaults, which were never opened, the defendants did not provide written notice of their intent to contradict the allegations in the complaint pursuant to
“(d) In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery. . . .”
But see Clark v. American Marine Corp., 320 F. Sup. 709, 711 (E.D. La. 1970), aff‘d, 437 F.2d 959 (5th Cir. 1971).
The Court of Appeals in Johnson also noted that, in applying the guidelines, the goal of enabling Title VII litigants to afford competent counsel should be balanced against the caveat that courts do not have a mandate under Title VII to make the prevailing counsel rich. Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d 717.
In remanding this case, we express no observation as to the correctness of the original amount awarded.