Frauenglass & Assocs., LLC v. Enagbare

• Decision Date: 07 November 2017
• Docket Number: AC 38122
• Citation: 178 Conn.App. 35,173 A.3d 994
• Court: Connecticut Court of Appeals
• Parties: FRAUENGLASS AND ASSOCIATES, LLC v. Helen ENAGBARE

178 Conn.App. 35

173 A.3d 994

FRAUENGLASS AND ASSOCIATES, LLC

v.Helen ENAGBARE

AC 38122

Appellate Court of Connecticut.

Argued September 13, 2017

Officially released November 7, 2017

Helen Enagbare, self-represented, the appellant (defendant).

Lloyd Frauenglass, for the appellee (plaintiff).

DiPentima, C.J., and Lavine and Kahn, Js.^*

PER CURIAM.

In Frauenglass & Associates, LLC v. Enagbare, 149 Conn. App. 103, 88 A.3d 1246, cert. denied, 314 Conn. 927, 101 A.3d 273 (2014), this court affirmed the judgment of the trial court awarding the plaintiff, Frauenglass & Associates, LLC, $33,189.97 for unpaid legal fees and interest (underlying action) for its representation of the defendant, Helen Enagbare. Following the defendant's unsuccessful appeal, the plaintiff sought postjudgment interest and attorney's fees. On May 5, 2015, the court awarded the plaintiff $17,270 in attorney's fees for the underlying action, $11,797.50 in appellate attorney's fees and statutory interest of 10 percent from the date of judgment, August 24, 2012, through the date of payment in full.

The self-represented defendant appeals from the award of attorney's fees and interest. Specifically, she claims that the court improperly failed to consider (1) newly discovered evidence that the judgment had been obtained by fraud, (2) evidence that the plaintiff's attorney, Robert H. Weinstein, committed a fraud by fabricating invoices and tampering with evidence, (3) her claim of a violation of General Statutes § 53a–155(a) ¹ and (4) that the plaintiff's conduct violated the Connecticut Unfair Trade Practices Act (CUTPA), § 42–110a et seq. We conclude that the defendant's arguments in the present action constitute an improper collateral attack on the judgment in the underlying action and that she failed to challenge the propriety of the May 5, 2015 award of attorney's fees and statutory interest. Last, her allegations of evidence of newly discovered fraud were not raised properly before the trial court and cannot be considered for the first time on appeal. Accordingly, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. The defendant had retained the plaintiff to represent her in a marital dissolution and child custody case. Frauenglass & Associates, LLC v. Enagbare, supra, 149 Conn. App. at 106, 88 A.3d 1246. In October, 2008, the defendant signed a retainer agreement and paid $7780 to the plaintiff. Id. Approximately four months later, the defendant terminated the services of the plaintiff, and, at that time, owed the plaintiff $21,551.93 for legal fees and costs.² Id., at 107, 88 A.3d 1246. The plaintiff initiated the action that underlies this appeal. In that action, the trial court, Hon. Richard M. Rittenband, judge trial referee, rendered judgment in favor of the plaintiff in the amount of $21,551.93 plus $11,638.04 in interest, for a total of $33,189.97. Id., at 108–109, 88 A.3d 1246.

On August 28, 2012, the plaintiff filed motions for its own counsel fees in prosecuting the underlying action and for postjudgment interest, which are the subject of this appeal. In the meantime, on August 27, 2012, the defendant filed an appeal from the underlying action, raising four issues. Id., at 104, 88 A.3d 1246. On April 1, 2014, we affirmed the judgment of the court in the underlying action. Id., at 103, 88 A.3d 1246. On April 22, 2014, the plaintiff filed a motion pursuant to General Statutes § 37–3a for interest from August 24, 2012, the date of the underlying judgment, through the date of payment in full. On that same day, the plaintiff also filed a motion seeking appellate attorney's fees.

The court, Elgo, J., held a hearing on the pending motions for attorney's fees and postjudgment interest on February 17, 2015. At that hearing, Weinstein introduced into evidence the retainer agreement and noted that it provided for interest and collection costs, including reasonable attorney's fees. Weinstein subsequently testified that he was seeking $17,270 for his trial work and $11,797.50 for his appellate work on behalf of the plaintiff in the underlying matter, as well as postjudgment statutory interest.³

During the defendant's testimony, she stated that the bill she had received from the plaintiff was fraudulent, and therefore she was not liable to pay it. Specifically, she referred to the defendant's exhibit A, which was the invoice, dated October 31, 2008, from the plaintiff to the defendant for legal services provided in the underlying action. The defendant later stated that the plaintiff and Weinstein had prepared a fraudulent invoice for the legal services provided by the plaintiff in the underlying action.

At a second hearing held on May 4, 2015, the defendant iterated her belief that she did not owe the plaintiff any money and that the plaintiff's invoices were fraudulent. These contentions, however, were directed at the plaintiff's conduct with respect to the underlying action, and not at the motions for attorney's fees for the work performed by Weinstein and for postjudgment interest. After hearing argument from the parties, the court inquired: "So, are you still referring to the underlying fees, ma'am?" The defendant responded in the affirmative. After further questioning, the defendant indicated that her claims stemmed from the invoices from the plaintiff, which, as Weinstein correctly noted, applied to the underlying case and were not the subject of the motions presently before the court.⁴

On May 4, 2015, the court issued the following order: "[T]his court finds that the requested attorney's fees for the underlying matter and for defending the appeal of this matter are fair, reasonable and appropriate. The record in this case and the degree to which this litigation has been before the courts, and, ultimately, found in favor of the plaintiff, strongly justifies postjudgment interest and the attorney's fees itemized and entered into evidence. Moreover, to this day, and as a review of the defendant's court filings reveals, the defendant's challenge to these fees improperly focuses on her arguments in the plaintiff's underlying claim for attorney's fees in the dissolution, which has already been adjudicated in the plaintiff's favor and upheld on appeal. Unfortunately, the defendant's persistently misguided perspective has perpetuated the litigation, to the detriment of the plaintiff's ability not only to secure finality with respect to securing duly earned fees but [also] to controlling the costs of litigation." (Emphasis added.) It awarded attorney's fees in the amount of $29,067.50 and postjudgment statutory interest.⁵ The court denied the defendant's subsequent motion to "set aside [the] judgment and [for] reconsideration," and this appeal followed.

Following the resolution of the underlying case, the plaintiff sought attorney's fees and postjudgment interest. These were the subject of the proceedings before Judge Elgo. Rather than responding to these issues, the defendant instead focused on the plaintiff's conduct during the underlying matter, namely, the attorney's fees charged by the plaintiff for its services provided to the defendant in the dissolution case.⁶ As properly noted by the trial court, the underlying matter had been decided in favor of the plaintiff at both the trial and appellate levels. Simply put, the defendant's arguments regarding the attorney's fees from the underlying case could not be addressed or ruled on by Judge Elgo. Similarly, we cannot consider the defendant's claims regarding the fees charged by the plaintiff in the underlying matter. To do so would constitute a collateral attack on that judgment, which is not permitted under our law. See Cimino v. Cimino, 174 Conn. App. 1, 7, 164 A.3d 787, cert. denied, 327 Conn. 929, 171 A.3d 455 (2017).

We briefly address the defendant's claim of newly discovered evidence of fraud. On March 4,...