Opinion
No. LLI-CV-03-0091742S
August 17, 2007
MEMORANDUM OF DECISION
Factual Background
The case centers on a dispute regarding annual tax assessments on property located at 22 Bellamy Lane in Bethlehem, Connecticut. More specifically, the issue is whether the plaintiff Kolesnik's title to that property was slandered by the defendant's recording of a lien on the land record for unpaid tax assessments imposed by Kasson Grove Property Owners Association, Inc. ("Association") for fiscal years 04-06 together with attorneys fees and interest.
The matter was tried on June 21, 2007, at which time evidence was offered and exhibits introduced. The parties entered into certain stipulations (primarily to amend the complaint and to make current and close the pleadings). At the parties' request, permission was granted to submit post-trial briefs. The court has carefully examined the record, the evidence, the pleadings, the briefs, and the applicable statutory and decisional law.
The relevant history is as follows. At least as early as May 16, 1935, a document captioned "Plan of Kasson Grove, Bethlehem, Connecticut," was recorded on that town's land records at Volume 1, Page 1 (Def. Exh. 3). The "Plan" constituted a map which depicted numbered lots to include lots numbered 1, 1-A, and 2 at the intersection of (what is now known as) Bellamy Lane and Kasson Avenue. Two (2) years later, a group known as Kasson Grove Property Owners Association, Incorporated was formed; its Articles of Association was filed on the Bethlehem Land Records on May 15, 1937 (Def. Exh. 10). By its terms, the Association was formed for the benefit of "property owners in the subdivision known as Kasson Grove . . ." and "in such other land in said Town adjacent to said subdivision who hereafter may apply for membership in this association . . ." Id. Art. 2, ¶ 1. It enumerates such powers of the Association as to "levy, assess and collect dues, assessments, fines and penalties from its members . . ." Id., Art. 2, ¶ 4. The Association's By-Laws, amended July 2003, provided, in Section I, that membership in that group shall consist of "individuals who own property in the division known as Kasson Grove" and that such individual members "will be the owners of record" as appear in the Bethlehem Town Clerk's Office. Pl. Exh. 2, p. 2 of 2. Section XVII provided annual expenses (to be paid from the collection of annual assessments) included the payment of insurance, taxes, utilities, snow plowing and beach sand and maintenance and that unpaid assessments would be charged interest at the maximum legal rate.
Many of the lots in the subdivision bordered or had a view of Bethlehem Lake and the testimony suggested the beach facility was in proximity to that Lake.
By mortgage deed dated, April 13, 1951 (Def. Exh. 1) and warranty deed dated April 18, 1951 ( Id.), William and Meta Carroll purchased Lot 2 as shown on the 1935 map ("Plan of Kasson Grove") above referenced; they purchased lots 1 and 1-A on October 18, 1952 (Def. Exh. 2). The warranty deed for the Lot 2 purchase referenced a 1932 map of "Kasson Park" (not available at trial) and identified the owner of Lot 2 as "Mabel I. Beardsley;" the deed for the purchase of Lots 1 and 1-A references the same 1935 map as earlier referenced and notes the two (2) lots constitute a portion of the property owned by Mabel I. Beardsley since 1931 ( Id.). On May 22, 1957, our legislature approved Special Act No. 57-345, "An Act Incorporating The Kasson Grove Property Owners Association, Incorporated," which Act provided for the Association's imposing of an annual assessment and interest on all unpaid accounts after July 1 of each year. Def. Exh. 11, Sec. 3. That section specifies that such assessments were "taxes," the non-payment of which (with at least thirty days notice to owners) constituted a property lien which could be continued by the filing of a certificate on the land records and that the Association's treasurer had "all the powers of collectors of town taxes" and was answerable to the Association's governing board as town collectors of taxes were responsible to local selectmen. Id. At least through 1979, the Carrolls' property was identified on the town assessor's field card as "Kasson Grove — Lots 1, 1-A, and 2." Def. Exh. 4. The Carrolls lived on that property for many years; remarkably, it was not until October of 2001 (after fifty plus years of ownership by the Carrolls) that the Association's newly elected treasurer (Juhas) discovered the Association's failure to send the Carrolls the tax bills timely received by other members. The Association asserts that such failure was a "mere oversight." Def.'s Brief, at 3. Having advised the Carrolls by letter of the recent discovery that the property they owned was within the boundary of Kasson Grove, that the Association was legally entitled to impose annual assessments, that it intended to impose such taxes for the fiscal year 2001-2002 only, and that interest would be waived if the bill were paid by January 1, 2002, the Carrolls determined not to pay. Thereafter, the parties communicated through counsel (which accomplished no change in either party's position) and Juhas, in his official capacity as treasurer of the Association, filed a certificate continuing the assessment lien in the Bethlehem town clerk's office on May 4, 2002. Def. Exh. 12.
It is unknown precisely when the combined parcel came to be known as 22 Bellamy Lane.
Counsel's characterizations of this long-standing pattern of neglect is absurd. The failure to tax this property — with the kind of notice mandated by the legislation frequently trumpeted by the Association — particularly when Mr. Juhas, in Pl. Exh. 1, asserts the need for the Carrolls' payment of taxes, is a classic example of non-feasance (repeated over many decades). Additionally, while Mr. Juhas deserves praise for the diligence his predecessors lacked, the court finds offensive the language in the three final paragraphs of his November 9, 2001, letter to the Carrolls (Def. Exh. 5) — particularly since, as he there states, he can offer "no explanation" for the prior repeated failures to tax. The writer's words do not, under these circumstances, encourage the Carrolls to comply — which should have been the purpose of the communication — and it is thus no surprise the communication failed in its essential purpose.
On October 15, 2003, the Carrolls conveyed title to plaintiff Kolesnik. The Association has demanded of Kolesnik payment of the annual assessments for fiscal years 2004-2007, which Kolesnik has refused to pay.
At the start of trial on June 21, 2007, the court granted the plaintiffs' motion to re-open a nonsuit against them and to amend their complaint to delete William Carroll as a named plaintiff (He died in November of 2005.) and to state Tanya Kolesnik is and has been the record owner of 22 Bellamy Lane since October of 2003. The defendant's answer and counterclaim (for payment of the overdue assessments plus interest and attorney fees) were amended in accordance with the Amended Complaint and to withdraw all claims as against the Carrolls (Mrs. Carroll was withdrawn as a plaintiff).
Adjudication of the Plaintiff Kolesnik's Claim
The plaintiff has asserted one (1) count alleging that the lien filed on the Bethlehem land record constituted a slander of title which had encumbered marketable title, interfered with a contract of sale, and reduced the value of the property. Compl., ¶¶ 3, 5g, 7. The plaintiff's brief does not address the cause of action alleged but instead argues the invalidity of the lien.
The plaintiff's complaint also alleges the defendant's action was in bad faith, intentional, and vexatious. ¶ 8. Putting aside that this combines two (2) causes of action in a single count, no evidence of bad faith or vexatious conduct was offered at trial and the plaintiff neither pursued this claim at trial nor in her brief. The court considers the claim abandoned.
A cause of action for slander of title consists of the "altering or publication of a false statement derogatory to the plaintiff's title, with malice, causing special damages as a result of diminished value of the plaintiff's property in the eyes of third parties. The publication must be false, and the plaintiff must have an estate or interest in the property slandered. Pecuniary damages must be shown in order to prevail on such a claim." (Internal quotation marks omitted.) Gilbert v. Beaver Dam Ass'n of Stratford, Inc., 85 Conn.App. 663, 672-73 (2004), cert. denied 272 Conn. 912 (2005), citing to Elm Street Builders, Inc. v. Enterprise Park Condominium Ass'n, Inc., 63 Conn.App. 657, 669 (2001).
The court is not persuaded the statements within the tax lien and/or the filing of the continuing assessment (Def. Exh. 12) were false. Filed on May 4, 2002, it asserted the Carrolls owned property at 22 Bellamy Lane in Bethlehem, which property was shown on maps of the subdivision known as Kasson Grove, and that Kasson Grove Property Owners Association, Inc., a special charter corporation, had an assessment lien in its favor upon that realty situated in Kasson Grove. It declared the principal amount of the lien (then $1,308.83) with legal interest fees and charges, "laid on the assessment list of October 1, 2000 . . . and became due on May 1, 2002." The plaintiff argues that her property is not clearly within the boundaries of Kasson Grove. This ignores that the development's original subdivision map captioned "Plan of Kasson Grove," dated April 1935, designating as owner of Section 1 one Mabel I. Beardsley, filed on the Bethlehem land records on May 16, 1935, depicted hundreds of numbered lots to include Lots 1, 1-A, and 2 at the corner of Kasson Avenue and (what came to be known as) Bellamy Lane. The plaintiff's protestations to the contrary, the three (3) subject lots appear clearly to be within the boundaries of Kasson Grove, a fact which is not diminished by Bellamy Lane ("Highway" on the map) being a town road. The warranty deed from the Carrolls to Kolesnik for Lots 1 and 1-A references, in Schedule A there attached, the very same map showing the "Plan of Kasson Grove"; though the plaintiff points to the reference (in Schedule A of Def. Exh. 9) to a 1932 map captioned "Map of Kasson park" (sic), as if that reference is significant, she fails to articulate its significance and, since the description of Lots 1 and 1-A on Kolesnik's warranty deed (Def. Exh.9) references all four (4) sections of the subdivision as shown on "Map of Kasson Grove" and the 1932 map was not offered into evidence at trial, the court attaches no significance to the description of Lot 2 as within "Kasson park (sic)" when the description of Lots 1 and 1-A identify the subdivision as "Kasson Grove." Nor does the court attach any meaning to the fact that the description of the "First Piece" (Lots 1 and 1-A) asserts a right to use the beach and the park shown on the 1935 map (Def. Exh. 3) when the description of the Second Piece (Lot 2) does not. That the Kolesnik residence is situated on Lot 2 is meaningless since, as owner of Lots 1 and 1-A, she has the "right to use, in common with others," . . . the beach and the park. It is her "right" to use and not her exercise of that right which characterizes and defines both her inclusion in the subdivision and her membership in the defendant Association. Nor can the Association's ability to levy annual assessments be disputed. It is a "district" under C.G.S. § 7-324 because a beach or improvement association located wholly within the town of Bethlehem and with the ability to levy taxes as conferred by Special Act No. 57-345 § 3 approved May 22, 1957 ("An annual assessment . . . for each lot in the Kasson Grove section as recorded on the town records, shall be assessed against the owner . . . of record . . ." Def. Exh. 11), by the Association's own By-Laws (Pl. Exh. 2, Sect. XVII — Annual Assessment, ¶ 1 — "The annual recurring expenses of the Association will be paid from the collection of annual assessments. Annual expenses are considered to be those incurred from payment of . . . taxes . . . "), and by the defendant's Articles of Association recorded on the town records on May 15, 1937 (Def. Exh. 10). Similarly, the right to charge interest on unpaid assessments is authorized by both the Special Act (Def. Exh. 11, Sect. 3) and the Association's By-Laws (Pl. Exh. 2, Sect. XVII, ¶ 6). As the defendant correctly notes, the "assessment" is the town's valuation of the record owner's property and the "tax" to be paid by that owner is the dollar amount arrived at by multiplying the assessment by the town's mill rate. Brief, at 5 (Citations omitted.). Once levied, the taxing district has all of the powers of a municipality to collect the tax owed. See e.g., C.G.S. § 7-328(a). Thus, the court concludes the recorded tax lien certificate did not contain false or derogatory statements.
Kasson Avenue is in the middle of the subdivision and extends from an eastern point bordering on "Highway" (later Bellamy Lane) to the west. Def. Exh. 3 shows the location of a beach and park area on Kasson Avenue extending to what appears on the map to be "The Bethlehem Lake."
The phrase "with others" can only mean the plaintiff is part of a larger subset of persons, the identity of which subset is made clear in Def. Exh. 3 — members of the subdivision of Kasson Grove.
Plaintiff's brief references the Special Act's provision, in Sect. 3, for an annual assessment "at the rate of two dollars and not exceeding five dollars" for each Kasson Grove lot, thus implying that the present assessment is impermissibly high and unauthorized. No authority is cited for the proposition each annual increase must be specifically authorized by both the enabling legislation and the Association's By-Laws — nor would such requirement be reasonable given the number of municipalities and taxing districts within the state. It is sufficient that the district's ability to tax is broad and without limitation re increases.
Plaintiff has also claimed lack of notice. The Carrolls did lack notice but they have been withdrawn as parties. Kolesnik testified she knew of the existence of the Association and the fact that it claimed both that her property was within Kasson Grove and that she owed taxes when she purchased. Additionally, she closed on the property on October 15, 2003; the warranty deed with attached Schedule A (Def. Exh. 9) was recorded on October 17, 2003. The original complaint is dated October 14, 2003, with a return date of November 25, 2003.
Finally, the plaintiff's argument the lien is invalid because she never applied for membership in the Association ignores the text and clear meaning of the legislative language upon which she relies. Special Act No. 57-345 (approved May 22, 1957) provides its purpose in incorporating was to conduct an association for property owners . . . in the subdivision known and designated as Kasson Grove . . . and in such other land in said town adjacent to said subdivision, who hereafter may apply for membership in this association . . ." (Emphasis added.) Def. Exh. 11, Sec. 2. The same language is found in the Articles of Association (Def. Exh. 10, Art. 2). Sec. 1 of the defendant's By-Laws provides that members in the association consist of record owners of property in the Kasson Grove subdivision, which members must subscribe to and agree to abide by the By-Laws. Pl. Exh. 2, Sec. I, ¶¶ 1, 6. Thus, the record owner of Lots 1, 1-A, and 2 shown as being within the boundary lines of the subdivision on maps filed on the land records (Kolesnik) is automatically a member of the Association and subject to all of the obligations enumerated in the By-Laws and the enabling legislation. Only persons with an interest "in such other land in said town adjacent to said subdivision" need apply for membership. It defies reason to conclude the defendant, reliant as it was upon annual assessments for funding of the various obligations it undertook under the By-Laws and the legislation, would leave it to property owners in the Grove to elect whether they would become Association members and thereby financially responsible to pay the assessments.
Nor does the court conclude the recording of the lien was an act done with malice. "Malice" requires an improper or unjustifiable motive. Haxhi v. Moss, 25 Conn App. 16, 19 (1991). Black's Law Dictionary, 6th Ed. 1990, describes malice as the "intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury or under circumstances that the law will imply an evil intent." Id., at 1109. No evidence of bad intent was offered. Mrs. Carroll, who had a plenitude of reasons to be angry at the defendant's failure to be aware of her existence within the Grove for multiple decades, testified she never considered the Association's actions to be the result of other than an honest mistake. The second of the essential elements to establish slander of title also fails.
Thirdly, the plaintiff must have been caused special damages as a result of the diminished value of the property in the eyes of third parties. Elm St. Builders, Inc. v. Enterprise Park Condominium Ass'n, Inc., 63 Conn.App. 657, 669 (2001). No evidence was offered of diminution of the property's value as a result of the recorded lien. All that is known is that Ms. Kolesnik paid a total of $165,000 for the three (3) lost in October of 2003 (Def. Exh. 9, at p. 1). No appraisal was offered and no person testified to a diminution of value following the lien's recordation. Nor has Ms. Kolesnik incurred attorney fees since represented throughout by her attorney-brother and father who stipulated to there being no fee for services. That the lien produced a cloud on the title is not proof there was a pecuniary loss to plaintiff flowing from the clouded title. Such claim (only impliedly asserted here but never fully articulated) was rejected by our Appellate Court in Gilbert, supra, 85 Conn.App., at 673.
The court rejects the defense claim that Kolesnik had not an estate or interest in the property slandered as Elm St. Builders, supra, requires. The lien was recorded in May of 2002. The plaintiff became the owner of the property on October 15, 2003. On that date, she had full title — both legal and equitable. That she then had notice of the lien is irrelevant to her standing to assert this claim and so too is it irrelevant that, as defense counsel asserts, it may be disingenuous for her to bring suit over property whose title she knew was clouded when she purchased. Brief, at 10.
For all of the above reasons, the plaintiff has not met her burden of proof on the single claim asserted for slander of title and she may not recover on the complaint. Judgment enters for the defendant on that complaint.
The Association's Counterclaim
By way of counterclaim, the defendant has sued Ms. Kolesnik for unpaid taxes from the date she bought the property (October 15, 2003) through fiscal year 2006 (The assessment date under Special Act 57-345 is June 1 of each year.) plus lien fee and interest and attorneys fees. The court has already found the taxes to have been properly assessed and to have been authorized by the Special Act as well as by the defendant's own By-Laws and Articles of Association. This state's decisional law has long held that the party against whom a tax has been properly assessed is liable for the same and has a clear duty to pay it. Schnier v. Com'r. of Transportation, 172 Conn. 427, 430 (1977); Low Stamford Corp. v. Stamford, 164 Conn. 178, 186 (1972). The plaintiff (defendant on the counterclaim) filed no special defenses to the counterclaim in her June 23, 2006, response to the Association's Answer, Special Defense, and Counterclaim. Kolesnik has not disputed the amount either of that lien or the taxes claimed as owing. The only basis upon which she contests the validity of the taxes is the location of the property at 22 Bellamy Lane — specifically, that it was unclear the property was within the boundaries of Kasson Grove. The plaintiff has offered — and the court has found — no authority for the proposition that, when one boundary of a given parcel borders a municipal street and is maintained by that town and the three (3) other borders fall within the boundaries of a subdivision, it cannot be concluded that the entirety of the property is within that subdivision. Kolesnik also argues, on p. 6 of her brief, that there are other properties "abutting" the Grove roads, the owners of which are not Association members. No evidence was offered to establish such a finding. What is — again — ignored is that Lots 1, 1-A, and 2 are depicted on all known maps of the Grove and that references to those maps (themselves recorded on the land records) are found in the deeds establishing the plaintiff's chain of title. That there may be other abutting owners who are not Association members is not surprising in view of Sec. 2 of Special Act 57-345 (Def. Exh. 11), which provides "adjacent" owners "may" apply for membership (as opposed to stating owners of record in the subdivision "are" members.)
The counterclaim against both Carrolls was withdrawn at trial.
Nor is the Association's claimed failure to send her any tax bills a defense to the validity of the assessments. First, Ms. Kolesnik's trial testimony was that she could not state whether she received them; second, she was made aware of the defendant's claims before she closed on the property; third, the defendant's laxity in enforcing payments does not bar the later collection of taxes due but unpaid. Hartford Electric Co. v. Sullivan, 161 Conn. 145, 164-65 (1971). The legislature's 1957 granting of tax district status to this defendant has continued this date and this court has neither the authority to revoke that status regardless of the Association's somnolence nor to grant the plaintiff's request to discharge a lien found properly asserted. Thus, the Association has the right to enforce the debt for taxes assessed in 2004, 2005, and 2006, plus interest (C.G.S. § 12-166; By-Laws, Sec. XVII), and lien fee (§ 12-166). As per the parties' stipulation, that amount is $3,981.69 through June 21, 2007, plus 1.0% interest on all amounts unpaid from July 2007, to the date the full debt is paid.
The plaintiff on the counterclaim can, if appropriate, file a motion for Supplemental Judgment once the interest has been calculated or the parties may submit a Stipulation to be made an Order in accordance with this decision.
Somewhat more thorny an issue is the counterclaim plaintiff's request for an award of attorney fees. It asks $21,113.80 in attorney fees (plus statutory costs not here addressed because awarded post-judgment by the clerk of the court). The defendant on the counterclaim objects to the award of any attorney fees on the grounds: a) the Association never instituted suit to collect the taxes (p. 2 of brief), b) all of the fees requested were incurred in defense of Ms. Kolesnik's claim for slander of title (p. 3 of brief), and c) C.G.S. § 12-166 allows for recovery of attorney fees only to collect delinquent taxes — "which this is not." Id. See also p. 5 of brief ("Any taxes which may become due if the Court [sic] determines that the plaintiff is a member of the association will be immediately and voluntarily paid by the plaintiff without the necessity of legal action" [emphasis added]). Id.
The first objection is without merit; it appears to be predicated on the mistaken belief that a counterclaim somehow enjoys an inferior legal status than does a complaint and that (presumably because subsequent in time to the filing of the complaint) the panoply of remedies available to a plaintiff on the counterclaim is more circumscribed than the relief afforded the original plaintiff. A counterclaim is a cause of action by the defendant against the plaintiff upon which the defendant seeks affirmative relief from the plaintiff. G.F. Construction, Inc. v. Cherry Hill Construction Inc., 42 Conn.App. 119, 122 (1996). If proper, it is an independent action. Id. It is proper if it arises out of the transaction described in plaintiff's complaint. Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 160 (1983). It should be alleged in the same manner as a complaint and must be answered. Home Oil Co. v. Todd, 195 Conn. 333, 341 (1985). In effect, it operates as a new suit; it is distinguishable from a crossclaim in that the latter may be dismissed if the original complaint is withdrawn (See Chase Manhattan v. Flyer, 7 Conn. L. Rptr. 156 [Rush, J., July 31, 1992) whereas a counterclaim is not impaired if the complaint is withdrawn. Id. at 6 Conn. L. Rptr. 494 (Rush, J., June 21, 1992). A counterclaim is, thus, severable and, in that sense, differs from an "answer" or "affirmative defense" which merely attempts to defeat plaintiff's cause of action. See e.g., Haven Federal Sav. Loan Ass'n. v. Kirian, 579 So.2d 730 (Fla. 1991). There is no purpose to be served in requiring the defendant to serve upon plaintiff a new lawsuit when the parties are already before the court and when a counterclaim properly asserted operates as a new "suit."
As to Kolesnik's second ground for objection, § 12-166 limits recovery of attorney fees to those ordered by the court "in any court action or proceeding brought to recover such tax." Thus, if the fees were incurred solely in defense of Kolesnik's claim, the fees would not be recoverable. But see Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 257 (2003), where the Court approved a total of $12,000 in attorneys fees incurred in defending four (4) wrongful discharge claims. To be sure, there is always an intertwining of the issues raised in defense of a case and those affirmatively pled as a counterclaim since the transaction alleged in the counterclaim must arise out of the transaction described in plaintiff's complaint. In the instant case, the Association's burden on defense was to demonstrate the plaintiff's inability to prove the requisite elements of a claim for slander of title and to establish the location of Lots 1, 1-A, and 2 within Kasson Grove. Its burden as plaintiff on the counterclaim was affirmatively to establish its right to collect the taxes claimed due. It did so by asserting a statutory cause of action under § 7-324 (¶ 2 of Counterclaim) and by further establishing the Association was a tax district with the power to assess and collect taxes. Since the Association also sought attorney fees, it had an independent duty to demonstrate its right to the same and it did so with reference to § 12-166. It cannot he said all of the counsel fees requested were in defense of the plaintiff's claim.
As to Kolesnik's third ground for objecting to recovery of attorney fees, it is disingenuous to argue there was not a necessity to bring an action to collect the taxes (See pp. 3, 5 of Kolesnik's brief). It is because the plaintiff did not concede 22 Bellamy Lane was within the Grove (despite Lots 1, 1-A and 2 being shown and identified as such on the 1935 map of the Grove and the reference in the deeds to "Kasson Grove," "Kasson Park," and to Mabel I. Beardsley as "Owner" of the land which came to be known as Kasson Grove) that the Association had to assert its right to payment. It is of no legal significance that it chose to do so in response to the plaintiff's complaint; in point of fact, given that plaintiff's complaint is dated one (1) day prior to her taking title to the property, the Association's right to collect from her had not yet ripened.
Connecticut courts adhere to the American rule regarding the recovery of counsel fees. Under that rule, legal fees and ordinary litigation expenses are disallowed the successful party absent a contractual or statutory provision to the contrary. Here, C.G.S. § 12-166 addresses the powers and duties of a collector of taxes — i.e., this defendant. It provides that "tax" includes not only the amounts due and owing but any increases in such amounts as a result of "interest, penalties, fees and charges, including collection fees of a collection agency and attorneys fees, provided such attorneys fees shall be limited to those ordered by the court in any action or proceeding brought to recover such tax (Emphasis added.). Id. Courts have imputed a requirement the requested fees be reasonable. What is "reasonable" is dependent upon the circumstances of the case and requires the court's consideration of such factors as the time and labor required, the novelty and difficulty of the questions involved, the skill required to perform the services, the likelihood the acceptance of the particular assignment will preclude other employment by the lawyer, the fee customarily charged in the legal community for such services, the amount involved and the results obtained, the time limitations imposed by the client, the experience, reputation, and ability of the lawyer, and whether the fee is fixed or contingent. Rules of Professional Conduct, Rule 1.5.
Our Appellate Court has, in limited circumstances, concluded that, in the absence of a contractual or statutory right to recovery, the court can exercise its equitable discretion to award legal fees as when, for example, the absence of such award would mean the plaintiff could not be made whole. See e.g., Mangiante v. Niemiec, 98 Conn.App. 567, 571-72 (2006).
These factors are not exclusive nor will each factor be relevant in every case. See Commentary, Conn. Practice Book, p. 11.
The court rejects Kolesnik's suggestion no attorney fees ought be recovered because no expert testified on the subject. Many Connecticut cases recite the requirement that the reasonableness of the fee be proven by an appropriate evidentiary showing. See e.g., Smith v. Snyder, 267 Conn. 456, 471 (2004), citing to Hartford Electric Light Co. v. Tucker, 183 Conn. 85, 91 (1981). Yet it is also generally held that a trial court "may rely on its own general knowledge of the trial itself to supply evidence in support of an award of attorneys fees . . ." (Emphasis added.) Marquardt and Roche/Meditz and Hackett, Inc. v. Riverbend Executive Center Inc., 74 Conn.App. 412, 429 (2003). In Smith, supra, our Supreme Court wrestled with the requirement of an evidentiary foundation independent of the trial court's general knowledge as the basis for an award of counsel fees. It concluded, "[W]hen a court is presented with a claim . . . the proponent must present a statement of the fees requested and a description of the services rendered. Such a rule leaves no doubt about the burden on the party claiming attorneys fees and affords the opposing party an opportunity to challenge the amount requested at the appropriate time." 267 Conn., at 479. See also Shapero v. Mercede, 262 Conn. 1, 9 (2002). The defendant offered a paid bill by the first retained counsel who proffered a legal opinion with regard to the tax lien with reference to the Carrolls (Def. Exh. 16), a detailed four-page statement for services from November 11, 2003, to March 23, 2007 (forty-plus months), from the second retained lawyer in the amount of $7,726.50 plus $156 in disbursements for a total of $7,882.50 — also paid (Def. Exh. 17), an affidavit, a resume, a statement of services from April 16, 2007 — June 19, 2007 (two months and exclusive of the one day trial) for $12,074.50 and costs of $66.80 — for a total of $12,141.30. The Association asks all attorney fees be awarded to include those already paid (Counsel suggests that amount is $21,113.80; the court's calculation is $20,301.). Clearly the legal opinion was not a collection effort by the Association and thus the total amount that could be awarded is $19,801 in counsel fees.
Present counsel was in the file for two months prior to trial. He had available to him the legal research done by others and knew where in the law he would find the authority to defend and to prosecute. Clearly, close examination of the research and the documents gathered by predecessor counsel was required and it was as clear he had the need to meet with his clients to prepare for trial. To award all that counsel requests is, however, to require Kolesnik to pay three (3) times for what should only he awarded once — particularly so since it was his client's choice to move from the first to the second lawyer and then to the third two months prior to trial. This case posed but a single cause of action against which the Association had to defend and a single statutory cause of action to prosecute. The issues were neither novel nor complex; counsel was able to do all of the preparation necessary for trial — to include multiple meetings and conversations with the client, draft (and then edit — at the client's instruction) discovery motions and correspondence, etc. — within two (2) months. He expended on this matter forty-one and one-half (41 1/2) hours prior to trial; it is unlikely he was required to turn away other clients for reason of this case. The sum in controversy (even had the limited payment requested of the Carrolls not been withdrawn at trial) was very modest. Counsel's resume advises he graduated with honors from law school in 1998 and has therefore practiced law for no longer than nine (9) years. He has published various legal articles in professional journals though not on municipal tax districts' taxing powers and duties. He presented at trial — and in the legal brief submitted — as entirely professional, prepared, conscientious, and courteous.
With reference to his request in the stated amount, counsel, in his post-trial brief, directed the following to adverse counsel, "[T]he Plaintiff has been acutely aware of who the Defendant's counsel has been . . ." Brief, at 20. The court is perplexed by that statement and knows not its intended meaning. He goes on to state adverse counsel "made no effort to . . . cross-examine Defendant's own testifying witnesses on the issue during trial." Id. Attorney Kolesnik cross-examined each witness the Association called; the Association witnesses (Juhas and Drab) were not competent to testify to either the accuracy of all of the many entries on the seven (7) pages of billing statements from its second and third lawyers or to the reasonableness of the hourly rate or activities undertaken.
In recognition of the preparation, efficiency of presentation of the evidence, and the advocacy skills demonstrated, the court finds a reasonable fee for trial counsel's work to be $7,375 to include costs of $66.80 as requested and identified. No portion of the fees of either of the Association's two (2) prior counsel is here awarded because earlier paid and it would be neither fair nor equitable for the defendant on the counterclaim to pay thrice for the duplicative efforts of serial counsel by the Association in this relatively unsophisticated legal matter.
Judgment for the plaintiff on the counterclaim enters in the amount of $3,981.69 (inclusive of the lien fee of $50.00) plus interest at the rate of 1.0% on all amounts due yet unpaid from July 2007, to the date that debt is fully satisfied.
The plaintiff on the counterclaim shall also recover $7,375 as reasonable counsel fees under the above described circumstances.