Cokic v. Fiore Powersports, LLC

222 Conn.App. 216

304 A.3d 179

Dejan Robert COKIC v. FIORE POWERSPORTS, LLC, et al.

AC 45740

Appellate Court of Connecticut.

Argued September 11, 2023

Officially Released October 31, 2023

Peter A. Lachmann, Branford, for the appellant (plaintiff).

Bright, C. J., and Elgo and Eveleigh, Js.

BRIGHT, C. J.

The plaintiff, Dejan Robert Cokic, appeals from the judgment of the trial court awarding $2360.89 in attorney's fees to the defendant Village Marina, LLC. ¹ On appeal, the plaintiff claims, inter alia, that the court abused its discretion in awarding the defendant attorney's fees on the basis of its conclusion that the plaintiff's claims against the defendant were brought without color and in bad faith. We agree and, therefore, reverse the judgment of the trial court. ² This court set forth the following facts, as found by the trial court, Hon. Arthur A. Hiller , judge trial referee, and procedural history in the plaintiff's prior appeal. See Cokic v. Fiore Powersports, LLC , 209 Conn. App. 853, 269 A.3d 214 (2022). "A friend of the plaintiff brought a jet ski to Fiore Powersports, LLC (Fiore Powersports), for repair. The form that authorized the repairs listed Pruven Performance, Inc. (Pruven Performance), as the owner of the jet ski and the party responsible for payment. After the repairs were completed, an invoice was provided to Pruven Performance. One night, the jet ski was removed from Fiore Powersports, without payment or permission, and brought to the plaintiff's residence. Fiore Powersports commenced a small claims action against Pruven Performance to recover the cost of the repair work, and, on January 29, 2016, judgment was rendered in favor of Fiore Powersports in the amount of $1908.80.

"In December, 2016, the plaintiff commenced the underlying action in this appeal against Fiore Powersports, its principal, Christopher Fiore, and the defendant. The plaintiff brought several claims against Fiore Powersports, Fiore, and the defendant related to the repair of the jet ski, including claims for conversion, fraud, and negligence, as well as claims under the Creditors’ Collection Practices Act, General Statutes § 36a-645 et seq., and the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.³ On July 30, 2019, after considering the plaintiff's claims during a bench trial, the court rendered judgment for Fiore Powersports, Fiore, and the defendant. In its memorandum of decision, with respect to the claims against the defendant, the trial court specifically found that ‘[n]o document, and no credible evidence ties or implicates ... [the defendant] into or with the claims made by the plaintiff, with any contract or agreement with the plaintiff, with any work on the jet ski, or with any representation, statement or misstatement about the jet ski.’

"On September 3, 2019, the defendant filed a postjudgment motion for attorney's fees. The motion requested that the court ‘award attorney's fees against the plaintiff and or the plaintiff's counsel [Peter A. Lachmann] for bringing this action against ... [the defendant] in bad faith.’ The plaintiff objected, arguing, inter alia, that the court did not give the plaintiff an opportunity to be heard on the issue of attorney's fees. On January 13, 2020, the court ordered that the plaintiff's counsel provide, by February 6, 2020, any evidence found in discovery to explain why the plaintiff believed that he would have a colorable claim against the defendant. The plaintiff filed a response to the order.

"On October 14, 2020, without scheduling a hearing, the court granted the motion for attorney's fees and awarded $893.75 to the defendant. The plaintiff then sought clarification of the court's order granting attorney's fees to the defendant. In a memorandum of decision on the motion for clarification, the court stated that, following its order of January 13, 2020, in which it ordered the plaintiff to provide any evidence ‘indicating that [the defendant] has responsibility or ownership in this action,’ the plaintiff provided no such evidence. The court further stated that what the plaintiff did provide to the court in ‘claimed compliance [with the order] ... totally failed.’

"The court also addressed the plaintiff's request to clarify ‘whether the order is against [the] plaintiff or [the] plaintiff's counsel.’ The court stated that the order was issued ‘against both the plaintiff and [the] plaintiff's counsel’ because ‘[n]o facts known to the plaintiff or his counsel ... would allow a reasonable person or a reasonable attorney to conclude that a colorable claim might be established against the defendant ....’

"On November 5, 2020, the plaintiff and Lachmann [appealed] from the decision of the court granting the motion for attorney's fees against both the plaintiff and Lachmann." (Footnote added.) Cokic v. Fiore Powersports, LLC , supra, 209 Conn. App. at 854–57, 269 A.3d 214.

This court dismissed Lachmann's appeal because he was not a party to the underlying action, but the court agreed with the plaintiff's claim that the trial court improperly had failed to provide him with a hearing on the defendant's motion for attorney's fees. Id., at 859, 861, 269 A.3d 214. Accordingly, the court reversed the judgment "only as to the award of attorney's fees against the plaintiff" and remanded the matter "for a hearing on the issue of attorney's fees." Id., at 861, 269 A.3d 214. On February 1, 2022, the appellate clerk taxed costs in the amount of $489.11 in favor of the plaintiff pursuant to Practice Book § 71-2. ⁴

On remand, the court, Brown, J ., held a hearing on the defendant's motion for attorney's fees on April 22, 2022. In its memorandum of law in support of that motion, the defendant argued "that there was no colorable claim to be made against it and that both the plaintiff and his attorney were aware of that fact when the suit was brought. The defendant ... is a legal entity which could only be held liable for the actions of its agents with express or implied authority to act on its behalf. ... The evidence produced by the plaintiff at trial showed that neither he nor his attorney could identify any agent of [the defendant] who had any contact with the plaintiff or the jet ski in question. The plaintiff also failed to produce any evidence to show that he was damaged by any actions of the defendant ....

"The evidence produced at trial by [Fiore Powersports] showed that Pruven Performance (not the plaintiff), was the party to the contract to repair the jet ski. [Fiore Powersports] was never paid by anyone, and there was no evidence linking the actions of any defendant to the condition of the jet ski when it showed up at another repair shop disassembled approximately a year and one half after it was removed from the premises of [Fiore Powersports]." (Citation omitted.)

In his objection to the defendant's motion for attorney's fees, the plaintiff argued that the defendant's "sole reliance on the judgment is irrelevant" to whether the plaintiff's claims against the defendant were colorable and noted that "[t]here [was] no mention of any bad conduct on the part of [the] plaintiff's counsel in the decision, which is the sole claim made by counsel for [the defendant]."

At the hearing, counsel for the defendant stated: "I am not going to offer evidence other than the decision of the trial court, which is already part of the file, and ... the list of exhibits that [was] before the trial court .... And as you can see from the finding of Judge Hiller, there was no evidence linking [the defendant] with the actions—with anything to do with the jet ski in question. I would like the court to just take a quick look at the findings of fact, which to me are—show a case that was brought without merit and right for these types of sanctions.

"The court has found specifically that someone other than the plaintiff, a Mr. [William] Jackowitz, brought the jet ski to Fiore Powersports and represented to Fiore that it was owned by Pruven, an entity named Pruven. Fiore Powersports was never informed that somehow the named plaintiff in this case was even a part[y] to anything to do with the repairs that Fiore [Powersports] was supposed to make on the jet ski. After there was a dispute between Fiore and the parties, Mr. Jackowitz, and maybe [the plaintiff], the jet ski was removed under the cover of night without permission, and returned to [the plaintiff], with no money being lost by [the plaintiff].

"Further, there is no evidence before this court as to any causation, as to whether or not there [were] any damages caused by whoever had possession. Moreover, there is absolutely no evidence that [the defendant] was involved in this transaction any other way. ...

"I look at the memorandum I filed ... and I look at the standard for awarding attorney's fees, which says it means no reasonable person can conclude. There is absolutely no evidence presented. If there is no evidence linking my client to anything to do with the jet ski, no reasonable person can conclude that the case would come out any different and that there would be a finding against my client. And, for those reasons, I would ask that the court award attorney's fees."

Daniel Robert Bagley, the president of the defendant, testified that the defendant had paid its attorney $2850 in connection with the defense of the underlying action, and the plaintiff's counsel declined to question Bagley. Instead, counsel for the plaintiff argued: "[W]e responded to Judge Hiller's request for information of a [colorable] claim ... and we provided that information. And it shows, I'll try to find [it], but it shows a document that involved the jet ski. It was sent by Village Marina, according to the document, and it was sent through the friend of the plaintiff. So, it's clear that they were involved. And that's all—it's all a basis of their motion for attorney's fees. And that document, which is the one where ...