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Francini v. Riggione

Court of Appeals of Connecticut

October 1, 2019

PETER J. FRANCINI, TRUSTEE, ET AL.
v.
NICHOLAS A. RIGGIONE

          Argued April 15, 2019

         Procedural History

         Action to recover damages for, inter alia, breach of contract, and for other relief, brought to the Superior Court in the judicial district of Ansonia-Milford, where the defendant filed a counterclaim; thereafter, the matter was tried to the court, Hon. John W. Moran, judge trial referee; judgment in part for the plaintiffs on the complaint and in part for the defendant on the counter- claim; subsequently, the court granted the motion for attorney’s fees filed by the plaintiffs, and the defendant appealed to this court. Reversed in part; further proceedings.

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

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

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

          OPINION

          KELLER, J.

         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] would compel a significant downward departure from the plaintiffs’ initial lodestar calculation; and (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 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 Francini’s home, and trim certain limbs of a large tree located on lot 2 that obscured Fancini’s view of Long Island Sound and Charles Island.

         On September 22, 2015, after subsequent attempts to resolve disputes related to the topsoil and tree limbs had failed, the plaintiffs commenced the present action. In the operative complaint, the plaintiffs sought money damages and equitable and injunctive relief for claims sounding in breach of contract and private nuisance. The plaintiffs alleged that, among other things, the defendant had breached the parties’ contract by refusing to trim certain limbs from the tree and refusing to level the topsoil pile on lot 2, which, at its peak, reached a height of approximately thirteen feet and significantly obscured Francini’s view of Long Island Sound. In their prayer for relief, the plaintiffs’ primary request was that the court provide them with a mandatory injunction requiring the defendant to ‘‘prune the lower limbs’’ of the tree and ‘‘remove or grade’’ the topsoil in order to restore lot 2 to its ‘‘natural topography.’’[7] The defendant filed a counterclaim seeking damages for Francini’s ‘‘[removal of] excess subsurface gravel and top soil material from [lot 3], ’’ and his subsequent failure to stockpile said materials on lot 2.

         After a five day trial, the court found in favor of the plaintiffs with respect to their breach of contract claims and awarded them $4100 in damages.[8] The court, however, denied the plaintiffs’ request for injunctive and equitable relief with respect to their claim of private nuisance because the relief requested in their posttrial brief under this claim was not sufficiently pleaded in the operative complaint, and, thus, the defendant was not given adequate notice as to the specific relief being sought.[9] The court further concluded that the plaintiffs’ two principal claims for injunctive relief regarding the tree limbs and the pile of topsoil had become moot after the fourth day of trial because the defendant trimmed the relevant limbs and leveled the topsoil so that they were no longer obscuring Francini’s view.

         Thereafter, the court held an evidentiary hearing over the course of two days on the plaintiffs’ timely motion for attorney’s fees.[10] In its memorandum of decision on attorney’s fees, the court determined that, even though the plaintiffs did not prevail on their nuisance claim, and that their principal claims for injunctive relief under their breach of contract claims were moot, the plaintiffs were the prevailing party, and that an award of fees was warranted pursuant to paragraph twenty-nine of the lawyers’ contract, which provided in relevant part: ‘‘[I]n the event of any litigation brought to enforce any material provision of this Agreement, the prevailing party shall be entitled to recover its reasonable [attorney’s] fees and court costs from the other party.’’ The court further concluded that no downward departure from the initial lodestar calculation was warranted and, thereafter, awarded the plaintiffs $93, 405 in attorney’s fees and costs. This appeal followed. Additional facts and procedural history will be set forth as necessary.

         I

         The defendant claims that the court abused its discretion in its award for attorney’s fees. In his view, had the court properly analyzed all of the factors in rule 1.5 (a) of the Rules of Professional Conduct, [11] a significant downward adjustment from the plaintiffs’ initial lodestar calculation[12] would be warranted. Specifically, the defendant argues that the court must have ignored the fourth factor, which provides that a court should consider ‘‘[t]he amount involved and the results obtained, ’’ because if the court had considered it, it would have reduced the award accordingly.[13] We find the defendant’s argument unpersuasive.

         The following additional facts are relevant to the defendant’s claim. After the court concluded that the plaintiffs were the prevailing party, the defendant argued in his opposition to the plaintiffs’ motion for attorney’s fees, as he does on appeal, that the case did not involve novel or difficult questions of law and that the breach of contract damages awarded were insignificant in relation to the court’s award for attorney’s fees, and, therefore, a downward departure from the initial lodestar calculation was warranted. The defendant further argued that the entire litigation was unnecessary because the material facts were not in dispute and the plaintiffs’ claims for injunctive relief were moot.

         In response, the plaintiffs countered that, ‘‘[only] after the filing of this lawsuit and after the initial close of evidence in this case, and after the expenditure of [a] significant amount of money on attorney’s fees by the [plaintiffs, did] the defendant remove the offensive tree limbs and . . . topsoil pile. . . . The fact of the matter is that the need for injunctive relief and specific performance concerning these issues was rendered moot, only after substantial litigation of the issues, when the defendant ultimately complied with his contractual responsibilities.’’ The plaintiffs further argued that, ‘‘while the amount of monetary damages involved in the [plaintiffs’] complaint was minimal, the ...


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