81 Conn. App. 552 | Conn. App. Ct. | 2004
Opinion
This appeal concerns an action for legal fees brought by the plaintiffs, Mark H. Swerdloff and Ileen P. Swerdloff, against the defendant, Jeffrey Rubenstein, their former client. The plaintiffs had been retained by the defendant to represent him in a tort action pursuant to a written fee agreement that pro
The plaintiffs commenced this action on May 8, 2001, and the defendant initially appeared through counsel. The matter was scheduled for trial before a fact finder on October 7, 2002. On August 29, 2002, counsel for the defendant filed a motion to withdraw, which motion complied with Practice Book § 3-10 (b) provisions, and notified the defendant of his right to be heard on the motion and advised him as to how his rights could be exercised. The motion was heard by the court on September 30,2002, but the defendant neither appeared at the hearing nor interposed an objection to the motion.
Following the conclusion of the October 7, 2002 fact-finding trial, the fact finder issued a memorandum recommending judgment for the plaintiffs. The defendant filed a pro se appearance and an objection to the decision, which was sustained by the court. A new fact finder’s trial was scheduled for December 16, 2002, and the defendant sought a continuance on the ground that he had obtained new counsel. That motion was denied by the court without a memorandum of decision. Although the defendant’s purported “new counsel,” attorney Michael R. Hasse, filed an affidavit, dated October 21, 2002, in connection with the defendant’s objection to the determinations of the first fact finder, he did not file an appearance. The second fact finder’s hearing proceeded on December 16, 2002, and a memorandum was filed on December 27,2002, recommending judgment for the plaintiffs in the amount of $11,000. The defendant objected, which objection was overruled, and the court subsequently rendered judgment in accordance with the findings of fact without issuing a memorandum of decision.
As to the defendant’s first claim that the court improperly failed to conduct an evidentiary hearing prior to the granting of his then counsel’s motion to withdraw, the court will not review the issue. The defendant neither interposed an objection to that motion to withdraw, nor did he appear to be heard. He instead raises the issue for the first time on appeal. “We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” (Internal quotation marks omitted.) Strouth v. Pools by Murphy & Sons, Inc., 79 Conn. App. 55, 62, 829 A.2d 102 (2003). The defendant had ample
The defendant next claims that the court abused its discretion in refusing to grant him a continuance of the second trial before the fact finder. In this state, a motion for a continuance is addressed to the sound discretion of the court, and its ruling will not be overturned absent a showing of a clear abuse of discretion. See, e.g., State v. Spells, 76 Conn. App. 67, 75, 818 A.2d 808, cert. denied, 266 Conn. 901, 832 A.2d 67 (2003). In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. See Sheppard v. Sheppard, 80 Conn. App. 202, 206, 834 A.2d 730 (2003).
“It is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation . . . where the trial court has failed to state the basis of a decision . . . [or] to clarify the legal basis of a ruling . . . .” (Internal quotation marks omitted.) Id., 214. In this case, the defendant’s motion for a continuance was denied without a memorandum of decision, and the defendant did not request an articulation of the court’s reasoning, a procedure provided for by Practice Book § 66-5. Thus, because there is nothing before this court that would permit an analysis of the facts underlying the court’s ruling, there is an inadequate basis on which to review the defendant’s claim of abuse of discretion.
“The factual findings of a [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.) MacMillan v. Higgins, 76 Conn. App. 261, 268-69, 822 A.2d 246, cert. denied, 264 Conn. 907, 826 A.2d 177 (2003). With respect to the first two claimed violations of the Rules of Professional Conduct, this court has reviewed the transcript and concludes, on the basis of the conflicting testimony that was offered, that there was sufficient evidence in the record to sustain the court’s conclusion that those assertions were without merit. With respect to the claim that a provision imposing the $250 per hour rate was not
“It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence. . . . Where testimony is conflicting the trier may choose to believe one version over the other ... as the probative force of the evidence is for the trier to determine.” (Citation omitted; internal quotation marks omitted.) Briggs v. McWeeny, 260 Conn. 296, 327, 796 A.2d 516 (2002). There is sufficient evidence in the record to support the fact finder’s determinations and, thus, those findings are not clearly erroneous.
The judgment is affirmed.
Further supporting our determination as to the inadequacy of the record are the peculiar circumstances surrounding the motion for a continuance. Although the motion was signed by the defendant as a pro se party, it was transmitted to the court by facsimile from the law offices of Hasse and
It is within the province of the court to consider matters of professional conduct in evaluating the evidence on the issue of damages in a claim for attorney’s fees on the basis of quantum meruit. See Marcus v. DuPerry, 25 Conn. App. 293, 298, 593 A.2d 163 (1991), rev’d in part on other grounds, 223 Conn. 484, 611 A.2d 859 (1992).