Francini v. Riggione

         Argued April 15, 2019

          Appeal from the Superior Court, Judicial District of Ansonia-Milford, Moran, Judicial Trial Referee.

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          Sean M. Dunne, for the appellant (defendant).

         Charles J. Willinger, Jr., with whom, on the brief, were Ann Marie Willinger and James A. Lenes, Bridgeport, for the appellees (plaintiffs).

         DiPentima C.J., and Keller and Olear, Js.

          OPINION

         KELLER, J.

         [193 Conn.App. 323] This appeal arises from a breach of contract and private nuisance action brought by the plaintiffs, Peter J. Francini, Trustee, and Donald W. Anderson, Trustee, on behalf of the Peter J. Francini 1992 Revocable Family Trust,^[1] against the defendant, Nicholas A. Riggione. After a five day trial to the court, the court rendered judgment in favor of the plaintiffs on their breach of contract claims, but denied their request for injunctive and equitable relief on their private nuisance claim. The defendant appeals from the court’s subsequent award, after determining that the plaintiffs were the prevailing party, of approximately $90,000 in attorney’s fees.^[2] On appeal, the defendant essentially claims that the court abused its discretion in calculating the award of attorney’s fees (1) because in awarding fees to the plaintiffs on their claims related to a breach of contract between the parties, a proper analysis of the factors listed in rule 1.5 (a) of the Rules of Professional Conduct^[3]

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would compel a significant downward departure from the plaintiffs’ initial lodestar calculation; and [193 Conn.App. 324] (2) when it awarded fees for a private nuisance claim on which the plaintiffs did not prevail.^[4] We agree with the defendant that the court abused its discretion in awarding attorney’s fees for a claim on which the plaintiffs did not prevail. Accordingly, we reverse the judgment of the trial court in part and remand the case for further proceedings consistent with this opinion.

         The record reveals the following relevant facts, found by the trial court or otherwise undisputed, and procedural history. The defendant was the owner of a three lot subdivision on Gulf Street, which abuts Milford Harbor and Long Island Sound, in the city of Milford. In 2012, the defendant agreed to sell one of the undeveloped lots (lot 3) for approximately $800,000 to Francini so that he could build a home with views of Long Island Sound, Charles Island, and the Milford Harbor. The initial closing date was set for July 18, 2012. The parties failed to close by the July closing date, and, thereafter, their attorneys drew up a second, more comprehensive [193 Conn.App. 325] agreement with a new closing date of September 14, 2012 (lawyers’ contract). The parties subsequently failed to close in September, 2012.^[5]

         In March, 2014, approximately eighteen months after the second closing date, the defendant conveyed title to Francini. At the March, 2014 closing, the parties entered into a final agreement (postclosing agreement),^[6] and memorialized the defendant’s remaining obligations relevant to lot 3. Among other things, the contract provided that the defendant was to maintain certain height restrictions on his property (lot 2), level and regrade whatever topsoil remained on lot 2 after the construction of ...