text:
    Charles A. Liapes v. James Beaulieu
    (6691)
    Spallone, O’Connell and Foti, Js.
    Argued March 16
    decision released May 9, 1989

      Clifton E. Thompson, for the appellant (defendant).

      Morton N. Katz, with whom, on the brief, was Douglas G. Farber, for the appellee (plaintiff).
   Spallone, J.

The defendant appeals from the judgment, rendered after a trial to the court, awarding the plaintiff $4500 in counsel fees. The defendant claims that the trial court erred in basing its award of counsel fees on General Statutes § 42-150aa.

The trial court found the following facts. On or about January 29, 1986, the defendant was indebted to the plaintiff in the amount of $30,000, as evidenced by a promissory note. The note contained provisions for interest, late charges, costs of collection, and reasonable attorney’s fees. When the defendant did not make a payment due on January 12, 1987, the plaintiff engaged the services of counsel to collect the debt. On or about January 16,1987, the plaintiff’s attorney notified the defendant in writing that, because of the default, the plaintiff had elected to exercise his option to declare the unpaid principal under the note, together with accrued interest, late charges, costs of collection and attorney’s fees due and payable pursuant to the terms of the note.

On May 21,1987, the plaintiff commenced an action to recover on the note. On June 9, 1987, the defendant paid the plaintiff the principal balance due under the note, together with all accrued interest and costs of collection, but did not pay any attorney’s fees. On July 10,1987, the plaintiff filed a substitute complaint to collect attorney’s fees under the note. After a trial to the court, judgment was rendered for the plaintiff awarding him $4500 in counsel fees.

Subsequent to the filing of the appeal, upon the defendant’s motion, the trial court filed an articulation that indicated that the award of counsel fees had been based, at least in part, on General Statutes § 42-150aa. The court expressly stated: “Judgment in the amount of $4500 (15 percent of $30,000) (See General Statutes § 42-150aa) entered as the judgment for the plaintiff rendered December 18, 1987.”

The facts clearly establish that the parties in the underlying transaction contemplated a mortgage on real estate to secure payment of a loan in an amount exceeding $25,000, and that no consumer contract or lease is involved in this case. It is therefore clear that General Statutes § 42-150aa, which limits the amount recoverable as attorney’s fees in actions on consumer contracts or leases, has no application in this case. We realize that the trial court may rely on its own knowledge of what has occurred in the proceedings before it as evidence in support of an award of counsel fees; Bizzoco v. Chinitz, 193 Conn. 304, 310, 476 A.2d 572 (1984); and that courts have a general knowledge of what would be reasonable compensation for services which are fairly stated and described. Appliances, Inc. v. Yost, 186 Conn. 673, 680, 443 A.2d 486 (1982); Pian-tedosi v. Floridia, 186 Conn. 275, 279, 440 A.2d 977 (1982). Moreover, our review of the transcript reveals that there was evidence presented to the court supporting an award of counsel fees. Because the court expressly alluded, however, to General Statutes § 42-150aa to support its award of counsel fees, we are unable to discern whether the court legitimately assessed counsel fees on the basis of its own knowledge and on the evidence elicited at trial, or whether it erroneously applied § 42-150aa. We note that during oral argument, the plaintiff specifically informed the trial court that he was relying on General Statutes § 42-150aa. Because the court may have partially or entirely relied on the statute in arriving at the amount of the award, we must find error. We agree with the trial court that the plaintiff, pursuant to his agreement with the defendant, was entitled to reasonable attorney’s fees, but we find that the amount awarded was arrived at erroneously.

There is error, the judgment is set aside and the case is remanded for a new hearing for the limited purpose of determining the amount of counsel fees due the plaintiff.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 42-150aa. attorney’s fees limited in ACTIONS on CONSUMER contracts OR leases, (a) The holder of any contract or lease entered into on or after October 1,1979, the subject of which is money, property or services intended to be used primarily for personal, family or household purposes and which contains a provision for payment of attorney’s fees of a creditor, seller or lessor, shall not receive, claim or collect any payment for attorney’s fees (1) for an attorney who is a salaried employee of such holder or (2) prior to the commencement of a lawsuit.
      “(b) If a lawsuit in which money damages are claimed is commenced by an attorney who is not a salaried employee of the holder of a contract or lease subject to the provisions of this section, such holder may receive or collect attorney’s fees, if not otherwise prohibited by law, of not more than fifteen per cent of the amount of any judgment which is entered.”

       The underlying transaction involved the sale of real estate by the plaintiff to the defendant, who signed the subject note and a mortgage deed, but failed to record the deed in the land records.

       General Statutes § 42-151 defines the terms consumer and consumer contract:
      “(a) Consumer. A ‘consumer’ is an individual who borrows, leases, buys or obtains money, property or services under a written agreement.
      “(b) Consumer contract. A written agreement is a ‘consumer contract,’ if:
      “(1) A consumer enters into the agreement primarily for personal, family or household purposes; and
      “(2) The agreement is one in which the consumer: (A) Borrows up to twenty-five thousand dollars or receives up to twenty-five thousand dollars in credit from a person who lends money or extends credit in the ordinary course of business; or (B) agrees to pay up to twenty-five thousand dollars to buy or lease personal property or services from a person who is acting in the ordinary course of business; or (C) leases any residential dwelling.”
      It is clear that the transaction between these parties does not fall within the meaning of the definition of the term “consumer contract.”


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    Warren B. Schott v. Christine Schott
    (6592)
    Bobden, O’Connell and Foti, Js.
    Argued December 13, 1988
    decision released May 9, 1989

      Patrick G. Eaglin, for the appellant (defendant).

      Edward W. Manasse, for the appellee (plaintiff).
   O’Connell, J.

This is the defendant’s appeal in an action for dissolution of a marriage. The dissolution judgment ordered the sale of the marital home and distribution of the proceeds to the parties. The defendant’s first three claims of error involve the common theme that the state trial referee, exercising the powers of the Superior Court, erred in ordering the payment of a bank debt, secured by an attachment, as an obligation of the entire marital estate. We find no error. In addition, the defendant asks this court to award her counsel fees expended in pursuit of this appeal.

The following facts are necessary to decide this appeal. The original judgment, dated August 5, 1986, ordered, inter alia, that the marital home be sold, and that the proceeds be used to pay encumbrances on the property, as a first priority, and joint debts of the parties, as a second priority. The defendant was to receive three quarters of the balance and the plaintiff was to receive the remaining one quarter.

As the months after judgment passed, it became evident that the parties could not, on their own, effectuate the sale of the jointly owned property. In December, 1986, both parties moved the court for the appointment of a committee. On January 10, 1987,the court, Maloney, J., appointed a committee to take the necessary steps to obtain a buyer and also to report on the joint debts of the parties that were to be paid from the proceeds of the sale.

The committee filed a report with the court on January 29,1987, detailing the initial actions taken to carry out its duties, and filed a second report March 9,1987, listing the joint debts of the parties and making recommendations on the proper resolution of each debt. At this point, it became clear that one debt was causing a problem. Prior to the rendition of the dissolution decree, Connecticut National Bank (CNB) had attached the property in connection with a personal loan made solely to the plaintiff. This occurred on June 13,1986, and a judgment lien was filed on February 10, 1987. The committee found this debt to be an obligation of the plaintiff, to the exclusion of the defendant. The attachment, however, rendered it an encumbrance within the meaning of the memorandum of decision and the committee recommended that it be paid as such.

The court accepted the report and the defendant filed a motion, to clarify the portion of the report concerning the CNB debt as it related to the dissolution judgment. In that motion, she requested the referee to order that this obligation be assumed solely by the plaintiff because the committee found that it was not the defendant’s obligation. In response to that motion, the referee unequivocally articulated that “[a]s it is an encumbrance under Paragraph 6 (1) of the judgment, it was to be satisfied under the first priority. It was not to be paid as a joint debt under priority 6 (2). No provision was made for individual debts.” (Emphasis added.)

The defendant claims that the referee erred in ordering that the CNB attachment be paid as an encumbrance on the entire property and thus holding her liable for a debt it found to belong exclusively to the plaintiff. She contends that that order is contrary to the law of encumbrances. We will decide the issue before us solely on its facts and the law relative to the assignment of property and transfer of title in dissolution actions.

It is well established that General Statutes § 46b-81 confers broad authority and discretion upon the trial court when assigning property in a dissolution action. Hurtado v. Hurtado, 14 Conn. App. 296, 308, 541 A.2d 873 (1988). On appeal, our scope of review is limited to a determination of whether, in exercising its discretion, the trial court correctly applied the law and could reasonably have concluded as it did. Little v. Little, 14 Conn. App. 195, 197, 540 A.2d 102 (1988).

Our Supreme Court has held that § 46b-81 authorizes the trial court to require one party to assume the joint liabilities of the parties. Beede v. Beede, 186 Conn. 191, 196-97, 440 A.2d 283 (1982); North v. North, 183 Conn. 35, 39, 438 A.2d 807 (1981); Schmidt v. Schmidt, 180 Conn. 184, 191, 429 A.2d 470 (1980). It follows, therefore, that the statute also authorizes the court to order that the debt of one party be paid from proceeds of a sale of the marital assets. In addition, the trial court’s order concerning the distribution of the balance of proceeds from the sale of the marital home remedies any claim of inequity concerning the payment of the debt. Hence, we are unable to conclude that the trial court abused its discretion.

In her last claim, rather than point to an alleged error of the trial court, the defendant appears to be asking this court to award her attorney’s fees, which she has incurred in this appeal. This we cannot do. It is rudimentary that the allowance of counsel fees is within the sound discretion of the trial court; General Statutes § 46b-62; Miller v. Miller, 16 Conn. App. 412, 417, 547 A.2d 922 (1988); not the Appellate Court. See Greene v. Greene, 13 Conn. App. 512, 517, 537 A.2d 537, cert. denied, 207 Conn. 809, 541 A.2d 1238 (1988). Hence, the defendant’s claim is inappropriate.

There is no error.

In this opinion the other judges concurred.

       Previously, we denied the plaintiff’s motion to dismiss this appeal for lack of jurisdiction. Although he raised the issue again in his brief, we see no reason to modify our earlier decision.


author: Norcott, J.

text:
    Mary Jane Kolkmeyer v. William J. Kolkmeyer, Jr.
    (6918)
    Spallone, O’Connell and Norcott, Js.

      Argued February 17
    decision released May 9, 1989

      Abrahaml. Gordon, with whom was Ronald D. Japha and, on the brief, Richard S. Scalo, for the appellant (defendant).

      Gaetano Ferro, with whom, on the brief, was Gina A. Pasquini, for the appellee (plaintiff).
   Norcott, J.

The defendant, William J. Kolkmeyer, Jr., appeals from the decision of the trial court on the plaintiff’s motions for contempt and for child support. He claims that the trial court erred in not making the orders for child support payments retroactive and in determining the amount of child support the defendant is to pay. We find error in part.

The record reflects the following facts. The marriage of the parties was dissolved on January 3,1984. There are two minor children of the marriage. Pursuant to the terms of the dissolution judgment, the defendant was to pay $385 per week as unallocated alimony and child support. These payments were to continue until the occurrence of one of several specified events, one of which was the remarriage of the plaintiff. The plaintiff remarried on July 18,1987. On July 31, 1987, the defendant filed a notice with the trial court stating that under the terms of the dissolution agreement, his obligation to pay unallocated alimony terminated on the date of the remarriage. He then voluntarily began to pay the plaintiff $100 per week as child support.

On August 7, 1987, the plaintiff filed a motion for contempt for the defendant’s failure to pay $385 per week for child support, and, on October 26,1987, filed a motion for child support requesting $385 per week. On March 21, 1988, the trial court, after a hearing on the motions, ordered the defendant to pay the plaintiff child support in the amount of $325 per week from the date of the order until September 1,1988, at which time the payment would be reduced to $275 per week. The court also ordered that for purposes of calculating arrearages the original order for $385 per week remained in effect until the date of the new order.

I

The defendant’s first claim is that because the judgment of dissolution provided that his payments to the plaintiff terminate on her remarriage, the trial court erred in ruling that payments of unallocated alimony and support continue beyond the date of remarriage until the date of the order for child support. The dissolution decree incorporated an oral stipulation by the parties. Paragraph five provides “The Defendant will pay to the Plaintiff as unallocated alimony and child support the sum of THREE HUNDRED EIGHTY-FIVE ($385.00) DOLLARS per week, which will continue until: (a) the Plaintiff dies; (b) the Plaintiff remarries; (c) both children should die; or (d) the Plaintiff lives with a man under such circumstances as would lead a reasonably prudent person to believe that they are cohabiting; (e) either child should die during minority or should become emancipated or, in any event, when the oldest child reaches eighteen (18) years of age, at which time the Defendant can ask for a reduction in the unallocated alimony and support, without any showing of substantial change of circumstances; (f) all alimony and support payments shall stop in any event when the youngest child reaches the age of eighteen (18) years and said termination of alimony and support shall not be modified to extend said date, under any circumstances.”

The defendant argues that under section 5 (b) the plaintiff’s remarriage terminated his obligation to make any further payments of unallocated alimony and support pursuant to the decree. The plaintiff contends that it was incumbent on the defendant to ask for a reduction in his payment to reflect the termination of alimony payments. In support of her position, the plaintiff looks to 5 (e), which provides that in the case of the death or emancipation of either child before age eighteen or when the oldest child reaches age eighteen, “the Defendant can ask for a reduction in the unallocated alimony and support, without any showing of substantial change of circumstances.” The plaintiff claims that this requirement for action on the part of the defendant applies to all events set out in paragraph five. The defendant contends that the phrase applies only to subsection (e) and that if it had been the intent of the parties to require such action on the occurrence of any of the events triggering termination of payments by the defendant, they would have explicitly and clearly said so. He argues that the plain language of the agreement makes section 5 (b) self-executing.

The trial court found that there was ambiguity in the agreement on which the decree was based. In interpreting paragraph five, the court determined that the section was not self-executing and that someone had to take action to have the amount of child support set by the court. Contrary to the statements by both parties, the record indicates that the court did not put the burden exclusively on the defendant, but rather held that either the defendant could move for reduction of the payments, or the plaintiff could file a motion requesting child support. The court also held that any reduction would take effect on the date such motion was decided, in this case on the date it decided the plaintiffs motions for child support and for contempt. On appeal, the defendant does not dispute his responsibility for paying child support, but does take issue with the trial court’s interpretation of the agreement and its ruling on. the effective date of its order for child support.

“Where a judgment incorporates a separation agreement, the judgment and agreement should be construed in accordance with the laws applied to any contract. The trial court’s construction of the agreement is an issue of fact subject to review under the limited standard of whether it is clearly erroneous. . . . The interpretation of the agreement is a search for the intent of the parties. This intent must be determined from the language of the instrument and not from any intention either of the parties may have secretly entertained.” (Citations omitted) Sweeny v. Sweeny, 9 Conn. App. 498, 500-501, 519 A.2d 1237 (1987).

The problem with the original judgment in this case is not that it is unclear whether alimony payments would cease on the remarriage of the plaintiff, but rather that it did not clearly provide for a procedure for adjustment of the defendant’s payments upon that remarriage. We conclude that the trial court’s decision that one of the parties was required to petition the court to set the amount of child support is a legally sound and proper interpretation of the judgment. Although the judgment provided for the termination of the weekly payments of $385 for unallocated alimony and support on the plaintiff’s remarriage, only the alimony portion of such payments terminated. As the defendant concedes, he was required to continue to contribute to the support of his children. See General Statutes § 46b-84. It was not proper, however, for him unilaterally to determine how much child support he was to pay.

Orders for unallocated alimony and child support are severable, and adjustments may be made when circumstances require. See Miller v. Miller, 181 Conn. 610, 613-14, 436 A.2d 279 (1980); Sweeny v. Sweeny, supra, 500-503; Matles v. Matles, 8 Conn. App. 76, 81, 511 A.2d 363 (1986). In Matles, we noted that “the trial court was confronted with the resolution of an existing court order for unallocated alimony and support, and the fact that the defendant was no longer required to support the child who had reached his majority. There is no automatic resolution of this problem. Inherent in an order of unallocated alimony and support is that some portion of the order is attributable to the payor’s obligation to support the child. When the obligation to support the child no longer exists, it becomes appropriate for the trial court to reexamine the facts and circumstances of the parties . . . . ” Matles v. Matles, supra, 79. In Sweeny, we used similar reasoning to determine the portion of an award of unallocated alimony and support attributable to child support when the children moved from the mother’s home to that of the father. Sweeny v. Sweeny, supra. We conclude that the reasoning set out in Matles applies to the situation before us. The order for unallocated alimony and support can reasonably be construed as containing a provision for the termination of alimony upon the plaintiffs remarriage. It does not, however, contain a provision for a specific amount of child support to be paid upon the occurrence of that remarriage. The trial court was therefore correct in holding that, upon motion of either party, it was incumbent upon the court to ascertain what part of the order was attributable to child support and enter an order for the payment thereof.

We do find error, however, in the trial court’s determination that the order setting child support took effect on the day it decided the plaintiff’s motions. The reasoning of the court that the original $385 weekly payment remained in effect until one of the parties acted is correct. This is so because some payment had to be made to support the children and the appropriate amount of that payment could only be determined by the court. Thus, to protect the children, the original payment remained in effect until the court determined the new amount. Once that new amount was determined, however, the proper resolution of the issue of arrearage was to apply an amount of child support retroactively to the date of the plaintiff’s remarriage, giving the defendant credit for the $100 per week paid during that time. This would accomplish the desired end of having the defendant pay the proper amount of child support without having to pay alimony to a remarried spouse, in contravention of the agreement of the parties as set out in the judgment.

The record is clear that the court set two amounts of child support to reflect the plaintiff’s employment status. At the time of the court’s order in March 1988, the plaintiff was not employed outside the home but rather was caring for the defendant’s two children and a child of her second marriage born on January 20, 1988. She testified that she intended to return to paid employment after the summer. The court ordered support in the amount of $325 per week while the plaintiff was at home and $275 per week after she returned to work in September. Because the record indicates that the plaintiff was employed in various capacities on a part-time basis from the time of her remarriage in July of 1987 until December of 1987 and not employed from late December 1987 until the time of the court order, it would not be appropriate to make either the $325 or the $275 payment retroactive to cover the period of July 18, 1987 to March 21, 1988. We therefore must remand the case to the trial court for a determination of the portion of the unallocated alimony and support payment attributable to child support for that period.

II

The defendant also claims error in the amount of child support the court ordered him to pay to the plaintiff. “ ‘The scope of our review “of a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did.” ’ Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Beede v. Beede, [186 Conn. 191, 194, 440 A.2d 283 (1982)]. ‘In determining whether the trial court could reasonably conclude as it did on the evidence before it, every reasonable presumption should be given in favor of the correctness of its action.’ Leo v. Leo, supra, 4-5. ‘The conclusions which we might reach, were we sitting as the trial court, are irrelevant. Gallo v. Gallo, 184 Conn. 36, 44-45, 440 A.2d 782 (1981); Koizim v. Koizim, 181 Conn. 492, 498, 435 A.2d 1030 (1980).’ Carpenter v. Carpenter, 188 Conn. 736, 741, 453 A.2d 1151 (1982).” Charpentier v. Charpentier, 206 Conn. 150, 154-55, 536 A.2d 948 (1988); Louney v. Louney, 13 Conn. App. 270, 273, 535 A.2d 1318 (1988).

The defendant claims that the trial court ignored the plaintiffs earning capacity, relying on her voluntary unemployment, that the award was grossly disproportionate to the children’s needs and that the court erred in not allowing questioning of the plaintiff’s current husband regarding his income. A review of the record convinces us that the financial award ordered by the trial court was not an abuse of discretion but rather reflected due consideration of the appropriate criteria set out in General Statutes § 46b-84. We also conclude that there is no merit to the defendant’s claim that the trial court precluded relevant questioning regarding the income of the plaintiff’s husband.

There is error in part and the case is remanded for a determination of the amount of child support owed from the date of the plaintiff’s remarriage until the date of the trial court’s order.

In this opinion the other judges concurred.

       The plaintiff’s reliance on Sanchione v. Sanchione, 173 Conn. 397, 378 A.2d 522 (1977) is misplaced. In Sanchione, the Supreme Court held that alimony could not be modified retroactively. This holding is inapposite to this case both because we do not have a motion for modification of alimony before us but rather a motion to set child support and because the reasoning of Sanchione in not modifying alimony retroactively was based on the position that alimony already accrued should not be modified. According to the terms of the parties’ agreement, alimony ceased on the plaintiff’s remarriage; thus, no alimony accrued between July 18,1987 and March 21, 1988.


author: Borden, J.

text:
    Michael P. Fattibene v. Dennis J. Kealey
    (6759)
    Borden, Daly and O’Connell, Js.

      Argued December 20, 1988
    decision released May 16, 1989

      Arthur T. Fattibene, for the appellant (plaintiff).

      Jeremy A. Mellitz, for the appellee (defendant).
   Borden, J.

The principal issues in this appeal involve the circumstances under which the trial court, in the exercise of its inherent authority, may impose sanctions of attorney’s fees for a course of bad faith pleading. This case is a sequel to our decision in Fattibene v. Kealey, 12 Conn. App. 212, 530 A.2d 206 (1987) (Fat-tibene I). In Fattibene I, the plaintiff appealed from the judgment of the trial court, rendered after acceptance of the report of an attorney trial referee, and from an order of the trial court imposing sanctions on the plaintiff and his counsel. We found no error in the judgment rendered in accordance with the referee’s report, and we dismissed the plaintiff’s appeal from the court’s order of sanctions for lack of a final judgment because the court had not yet determined the amount of the sanctions. Id., 216.

The plaintiff now appeals from the subsequent judgment of the trial court imposing sanctions of attorney’s fees in the amount of $1170. The plaintiff also appeals from the court’s denial of his motion for sanctions against the defendant. We find error.

Some further background is in order. The plaintiff brought suit alleging that the defendant had been negligent and had breached a warranty in repairing the transmission in the plaintiff’s car. The case was referred to an attorney trial referee. On December 27, 1985, the referee filed his report finding that the plaintiff had- not established any of his claims. During the course of the hearing before the referee, both parties moved for costs against the other. The plaintiff’s motion, based on alleged bad faith pleading, was denied because the referee found no bad faith. The defendant’s motion for costs pursuant to Practice Book § 111 was denied because the referee found that “there was not a sufficient showing of unreasonableness to warrant such an award.”

On January 6,1986, the plaintiff moved for an extension of time to object to or to move to correct the referee’s report. Meanwhile, the defendant moved for judgment in accordance with the report. Thereafter, the plaintiff filed an objection to the report and to the defendant’s motion for judgment, and the court granted the plaintiff’s motion for an extension of time.

On January 30, 1986, the plaintiff filed a motion to correct the referee’s findings of fact, and on February 5, 1986, he filed a memorandum and objection to acceptance of the report. On February 10, 1986, the defendant filed a brief in support of his motion for judgment accepting the report. On February 26,1986, the plaintiff filed a supplement to his earlier memorandum and objection to acceptance of the report, and a reply brief in opposition to the defendant’s brief in support of the defendant’s motion for judgment. The trial court referred the entire matter back to the referee.

On March 21,1986, the parties appeared before the referee pursuant to the court’s order. At that proceeding, the plaintiff filed with the referee a motion to “continue the fact-finding hearing,” based on the claims, supported by an affidavit of his counsel, that there was newly discovered material evidence and that the original hearing had ended before he had an opportunity to present rebuttal evidence to the defendant’s case. The referee denied that motion. The parties then argued the other issues that were included in the referral back to the referee. On February 25,1986, the plaintiff filed an objection to the referee’s ruling on the plaintiff’s motion to continue the fact-finding hearing.

On April 3,1986, the referee rendered a supplemental report, in which he noted that “the file is a procedural morass.” He first articulated his earlier ruling on the plaintiff’s motion to continue the fact-finding hearing. With respect to the plaintiff’s claim of newly discovered evidence, the referee found that the plaintiff had not shown that he had exercised due diligence to discover the evidence before trial or that the evidence did not exist at the time of trial, and that the plaintiff had not shown that the alleged new evidence was material or that it would change the outcome of the case. With respect to the plaintiff’s claim that the referee had denied him an opportunity to rebut the defendant’s case, the referee found that the plaintiff did not offer or attempt to offer rebuttal evidence other than through posttrial motions. The referee stated: “At best the plaintiffs argument on this issue is specious.”

The referee’s supplemental report then addressed the plaintiff’s motion, dated January 10, 1986, objecting to the referee’s factual findings, and his motion dated January 30,1986, to correct the factual findings. The referee devoted sixteen pages of his supplemental report to rejecting the plaintiff’s claims in detail, with the sole exception that one factual finding in the original report was amended in accordance with the plaintiff’s request.

On April 4, 1986, the plaintiff moved for an extension of time to file an exception to the referee’s supplemental report. On April 8,1986, the defendant filed an objection to the plaintiff’s motion for extension of time. On April 11, 1986, the plaintiff filed his exception to the referee’s supplemental report and a motion to introduce new evidence.

On April 21, 1986, counsel for the parties appeared before the trial court at short calendar. The short calendar list indicated three matters set down for consideration by the court: (1) the plaintiff’s exception to the referee’s supplemental report; (2) the plaintiff’s motion for extension of time; and (3) the plaintiff’s motion to introduce new evidence.

On the same day, but before the short calendar proceedings on those three calendared motions, the defendant filed with the clerk of the court the motion that ultimately led to this appeal, namely, a motion for sanctions against the plaintiff. That motion requested that the court impose sanctions on the plaintiff on the ground that the plaintiff had repeatedly filed pleadings in bad faith, with intent to harass the defendant and to delay the entry of judgment. The legal bases of the motion were Practice Book § 111, General Statutes § 52-99, General Statutes § 51-84, “the court’s announced policy of enforcing rule 11 of the Federal Rules of Civil Procedure in this Judicial District,” and “the court’s inherent power to supervise and regulate attorneys coming before it . . . .”

During the course of the short calendar proceedings, the defendant referred to his filing of the motion for sanctions. The court stated: “All right. I’ll read the transcript. I’ll read the arguments. I will entertain your motion for sanctions if I feel it’s dilatory. I will impose a sanction.” The plaintiff thereupon began to argue his motion to introduce new evidence, noting: “That’s one of the three motions I brought today.” After brief argument by both parties regarding that motion, the court stated: “I will take the papers. . . . I’m serious. If it’s dilatory, we have rule 11 here.”

One week later, on April 28,1986, at approximately 9 a.m., the plaintiff filed with the clerk of the court a thirteen page objection to the defendant’s motion for sanctions. On the same day, the parties appeared before the court at short calendar. The only matter calendared was the defendant’s motion for judgment on the referee’s report. The colloquy between the court and counsel indicates that the court had already ruled on the defendant’s motion for sanctions, and that its memorandum of decision was being typed and would soon be sent to counsel. At the court’s suggestion, the defendant’s motion for judgment went off the calendar.

On May 5, 1986, the court filed its memorandum of decision, dated April 28, 1986, on the defendant’s motion for sanctions. The court referred to the defendant’s motion as being pursuant to Practice Book § 111, General Statutes §§ 51-84 and 52-99, and the court’s inherent authority to supervise the conduct of attorneys appearing before it. The court did not refer, however, to rule 11 of the Federal Rules. The court stated: “Plaintiff and his counsel are charged with knowing the rulings of practice in this court and the statutes controlling the conduct of proceedings before the court. A review of this file can lead to only two possible conclusions concerning the conduct of plaintiff and his counsel; either they are unfamiliar with the practice of law before the court or they have chosen to ignore the rules and statutes governing that practice. Neither event can or will be tolerated by the court.”

The court found, from its review of the file, that the plaintiff had repeatedly asserted claims that were unsupported by the record, and had demonstrated a lack of understanding or knowledge of the legal authority controlling the disposition of the case. It specifically referred to the fact that the plaintiff’s attempt, after trial, to introduce “new evidence” that was not offered at the trial, without any possible justification for his failure to do so, was in derogation of his burden to present his complete case at trial. The court stated: “The fact that the plaintiff, by design or oversight, failed to meet the burden does not justify the frivolous and bad faith efforts to correct his error after trial.”

The court concluded as follows: “A review of the entire file leads to the inevitable finding that the plaintiff and his counsel, intentionally or through lack of knowledge, have conducted themselves in a bad faith manner and/or with a frivolous disregard for the practice of law before this court.” The court therefore imposed the following sanction: “The plaintiff and his counsel are taxed all costs incurred by the defendant, including all reasonable attorney’s fees for defendant’s counsel since March 21,1986.” The court directed the defendant’s counsel “to submit the itemization of the costs involved, with appropriate affidavits or proof by April 30,1986.” On May 5,1986, this ruling of the court was reflected in a judgment in which the court accepted the reports of the attorney trial referee, and in which the court “adjudged that the following sanction is imposed: The plaintiff and his counsel are taxed all costs incurred by the defendant, including all reasonable attorney’s fees for defendant’s counsel since March 21, 1986.”

The plaintiff appealed from that judgment to this court. We found no error in the judgment accepting the referee’s report, and dismissed the appeal as to the sanctions for lack of a final judgment. Fattibene I, supra.

After our decision in Fattibene I, further proceedings took place in the trial court. On December 9,1987, the court held a hearing on the amount of the costs to be imposed as sanctions against the plaintiff. In its supplemental memorandum of decision dated January 29, 1988, the court referred to its inherent authority to impose reasonable sanctions to compel observance of its rules, and to Professor Moore’s commentary to rule 11 urging that courts pay greater attention to pleading abuses and to imposing sanctions when appropriate, in order to discourage dilatory or abusive tactics and frivolous claims or defenses. J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice § 7.05. The court repeated its earlier finding that the plaintiff and his counsel, either intentionally or through lack of knowledge, conducted themselves “in a bad faith manner and/or with a frivolous disregard for the practice of law before [the] court,” and it stated that it was assessing “costs and reasonable attorney’s fees incurred by the defendant from the date it felt the frivolous pleading began.” It concluded: “A hearing was held by this court as to these costs on 12/9/87. As a result of this hearing, the court awards attorney’s fees in the amount $1170.” The court then rendered a substituted supplemental judgment which stated, inter alia, that on “December 9, 1987 . . . the parties appeared and were heard as to the amount of said sanctions,” and that “the Defendant should be awarded attorney’s fees . in the amount of $1170 . . . .”

Subsequently, the court denied the plaintiff’s motion for sanctions against the defendant. This appeal followed.

The plaintiff raises several claims of error. The decisive claim is that the court awarded sanctions without affording the plaintiff a proper opportunity to be heard. Although our conclusion on that claim requires that the case be remanded for a new hearing on the defendant’s motion for sanctions, we address the plaintiff’s other claims to the extent that they are likely to arise in the course of that hearing.

I

The plaintiff claims that the trial court imposed sanctions of attorney’s fees without affording the plaintiff a proper hearing on the defendant’s motion. We agree.

“Unless otherwise provided in these rules or ordered by the court ... all motions . . . must be placed on the short calendar list. No motions will be heard which are not on said list and ought to be have been placed thereon . . . .” Practice Book § 206. “Matters to be placed on the short calendar shall be assigned automatically by the clerk without written claim .... No such matters shall be so assigned unless filed at least five days before the opening of court on the short calendar day.” Practice Book § 208. These rules implement the fundamental principle of judicial administration “ ‘[t]hat no matter shall be decided unless the parties have fair notice that it will be presented in sufficient time to prepare themselves upon the issue.’ ” Connolly v. Connolly, 191 Conn. 468, 475-76, 464 A.2d 837 (1983), quoting Osterlund v. State, 129 Conn. 591, 596, 30 A.2d 393 (1943). This principle is particularly appropriate with respect to a claim of bad faith or frivolous pleading by an attorney, which implicates his professional reputation. Cf. Connolly v. Connolly, supra, 478. “Like other sanctions, attorney’s fees certainly shall not be assessed lightly or without fair notice and an opportunity for a hearing on the record.” (Footnote omitted.) Roadway Express, Inc. v. Piper, 447 U.S. 752, 767, 100 S. Ct. 2455, 65 L. Ed. 2d 488 (1980).

These rules and the principle they embody were violated in this case. The defendant filed his motion for sanctions on the morning of the day he presented it to the court. It was never placed on the short calendar, and the defendant brought it up only tangentially during the course of the argument on the plaintiff’s calendared motions. Furthermore, one week later the plaintiff filed a lengthy objection to the motion, but the record is clear that by that time the court had already ruled on the motion.

The defendant argues that despite this procedural defect the plaintiff was not ultimately harmed because, at the hearing held by the court on December 9,1987, after our decision in Fattibene I, the issue of whether sanctions should be imposed was fully litigated. This claim is not supported by the record before us on this appeal.

Both the memorandum of decision of the trial court, dated January 29, 1988, and the court’s substituted supplemental judgment reflecting that memorandum of decision, clearly indicate that the hearing on December 9, 1987, was concerned with the amount of the sanctions to be imposed, not whether they should be imposed. This is consistent with our dismissal of the plaintiff’s appeal in Fattibene I regarding sanctions; because there had been no determination of the amount of the sanctions, there was no final judgment on that issue. Neither party has supplied us with a transcript of the December 9, 1987 hearing. Furthermore, the parties were before the court on March 14,1988, in connection with the plaintiff’s motion for sanctions, inter alia, when the court, referring to the remand following Fattibene I, stated: “The Appellate Court ruled on [the original judgment in the case.] The only thing they sent to me was to establish a fee.” Although ordinarily it is the appellant’s burden to furnish us with a proper record; Gill v. Petrazzuoli Bros., Inc., 10 Conn. App. 22, 30 n.4, 521 A.2d 212 (1987); where as here the appellee wishes us to conclude that a matter was litigated contrary to what the court’s memorandum of decision, judgment and oral remarks indicate, the appellee should bear the appellate burden of producing a record as a basis for such a claim. Under these circumstances, therefore, we have no basis to believe that the trial court gave the plaintiff a proper opportunity to be heard in response to the defendant’s motion for sanctions.

II

Although the lack of a proper hearing is dispositive of this appeal, we consider certain of the plaintiffs other claims of error because they are likely to arise on the remand. These claims involve the various possible sources of the trial court’s authority to impose sanctions in this case.

We first consider the plaintiff’s claim that the court erred by basing its order of sanctions on rule 11 of the, Federal Rules of Civil Procedure. We agree.

Although in its intial memorandum of decision granting sanctions, before Fattibene I, the court referred only to Practice Book § 111, General Statutes §§ 51-84 and 52-99, and its inherent authority, it is clear from the record that its ultimate order of sanctions was based in part on rule 11 of the Federal Rules of Civil Procedure. The defendant’s motion specifically invoked what it referred to as the court’s policy of enforcing rule 11. The court, during the April 21,1986 short calendar session, stated: “We have rule 11 here.” Furthermore, in its supplemental memorandum of decision, dated January 29,1988, granting the amount of the sanctions, the court referred not only to its inherent authority but also to the commentary of Professor Moore on rule 11.

The rules of practice for the Superior Court are adopted by the judges of the Superior Court in the exercise of their inherent rule-making authority. State v. King, 187 Conn. 292, 297, 445 A.2d 901 (1982); State v. Clemente, 166 Conn. 501, 514, 353 A.2d 723 (1974). Practice Book § 7 provides the procedure for the promulgation of rules adopted by the judges. Although on occasion our Supreme Court has looked to federal rules for guidance in deciding cases; see, e.g., State v. Nardini, 187 Conn. 513, 526, 447 A.2d 396 (1982) (Fed. R. Evid. 609 [b], although “not ours,” may “serve as a rough bench mark in deciding whether trial court discretion has been abused”); we know of no authority permitting an individual judge or judicial district simply to adopt a particular rule of federal civil procedure, especially one as specific and detailed as rule 11. See footnote 4, supra. Thus, to the extent that the court relied on federal rule 11, it erred.

We next turn to the plaintiff’s claim that the court erred by relying on Practice Book § 111. See footnote 1, supra. We conclude that this rule provides sanctions for filing substantive factual allegations or denials of substantive factual allegations without reasonable cause, when those allegations or denials are found to be untrue. We reach this conclusion from an examination of the language and history of Practice Book § 111.

The rule provides that “[a]ny allegation or denial made without reasonable cause and found untrue shall subject the party pleading” it to pay the reasonable expenses necessarily incurred by the other party “by reason of such untrue pleading . . . .” The focus of the language is on allegations and denials “found untrue” and on the expenses incurred by the other party “by reason of such untrue pleading . . . .” (Emphasis added.) Id. It is apparent that in this context “true” means “conformable to fact: in accordance with the actual state of affairs and not false or erroneous.” Webster, Third New International Dictionary. This conclusion is buttressed by the last sentence of Practice Book § 111, which provides that “[sjuch expenses shall be taxed against the offending party whether he prevails in the action or not.”

Furthermore, this is the sense in which Practice Book § 111 and its predecessors have been interpreted. See Wojcik v. Metropolitan Life Ins. Co., 124 Conn. 532, 535-36, 1 A.2d 131 (1938) (the defendant should have confined denial “to the only fact that it could or intended to contest”); Jennings Co., Inc. v. DiGenova, 107 Conn. 491, 494, 141 A. 866 (1928) (the defendant should have been charged with the plaintiffs reasonable expenses “since the defendant had untruly pleaded denial of facts without reasonable cause”); Hatch v. Thompson, 67 Conn. 74, 76, 34 A. 770 (1895) (plea of general denial to material allegations of complaint which the defendant knows to be true subjects him to payment of expenses incurred to establish the truth).

Our examination of the defendant’s motion for sanctions and the court’s memoranda of decision thereon does not disclose a violation of Practice Book § 111. The defendant claimed in his motion for sanctions that the plaintiff, in his motions, had advanced certain procedural claims in bad faith, mischaracterized certain rulings by the referee, misstated evidence, pervasively disregarded the rules of evidence, attempted to prejudice the referee and the court against the defendant, made inappropriate references to the referee, and that the “sheer volume and repetitious nature of the [plaintiff’s] pleadings [were] indicative of an attempt to harass and delay.” Although we do not countenance such conduct, and although such conduct, if established, could form the basis of sanctions under the court’s inherent authority, it does not fall within the confines of “untrue” substantive factual allegations or denials under Practice Book § 111.

To the extent that the trial court relied on Practice Book § 111 in ruling on the defendant’s motion for sanctions, it erred. On the remand, therefore, such reliance would be improper.

We turn, therefore, to the final source of authority for sanctions in this case, namely, the court’s inherent authority. We conclude that the court has inherent authority to impose sanctions for bad faith pleading, even in the absence of a violation of a specific rule or order of the court. We also conclude, however, that the court did not properly exercise that authority in this case.

There is ample authority in this state for sanctions against an attorney for violation of a specific rule or order of the court. General Statutes § 51-84 (b) provides that the court “may fine an attorney for transgressing its rules and orders in an amount not exceeding one hundred dollars for any offense, and may suspend or displace an attorney for just cause.” That statute, “encompassing all judicial proceedings, recognizes the inherent power of the courts to impose sanctions against attorneys ... in civil matters” as well as criminal matters. In re Mongillo, 190 Conn. 686, 692, 461 A.2d 1387 (1983). It is part of the court’s inherent power “ ‘to provide for the imposition of reasonable sanctions to compel the observance of its rules.’ ” Id., 690, quoting Stanley v. Hartford, 140 Conn. 643, 648, 103 A.2d 147 (1954); see also Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 34, 474 A.2d 787 (1984); Thode v. Thode, 190 Conn. 694, 699, 462 A.2d 4 (1983). The question raised by this appeal, however, is whether the court has the inherent authority to impose sanctions against an attorney and his client for a course of claimed dilatory, bad faith and harassing litigation conduct where there is no specific rule or order of the court that the plaintiff is claimed to have violated. See footnote 7, supra. We conclude that, subject to appropriate limitations, the court has such authority.

This state follows the general rule that, except as provided by statute or in certain defined exceptional circumstances, “the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975); Ernst Steel Corporation v. Reliance Ins. Co., 13 Conn. App. 253, 261, 536 A.2d 969 (1988). That rule does not apply, however, “where the opposing party has acted in bad faith.” Roadway Express, Inc. v. Piper, supra, 765-66. It is generally accepted that the court has the inherent authority to assess attorney’s fees when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons. Id., 766; Dow Chemical Pacific Ltd. v. Rascator Maritime S.A., 782 F.2d 329, 344 (2d Cir. 1986). This bad faith exception applies, not only to the filing of an action, “ ‘but also in the conduct of the litigation.’ ” Roadway Express, Inc. v. Piper, supra, 766, quoting Hall v. Cole, 412 U.S. 1, 15, 93 S. Ct. 1943, 36 L. Ed. 2d 702 (1973). It applies both to the party and his counsel. Roadway Express, Inc. v. Piper, supra. Moreover, the trial court must “make a specific finding as to whether counsel’s [or a party’s] conduct . . . constituted or was tantamount to bad faith, a finding that would have to precede any sanction under the court’s inherent powers” to impose attorney’s fees for engaging in bad faith litigation practices. Id.

We agree, furthermore, with certain principles articulated by the Second Circuit Court of Appeals in determining whether the bad faith exception applies. “To ensure . . . that fear of an award of attorneys’ fees against them will not deter persons with colorable claims from pursuing those claims, we have declined to uphold awards under the bad-faith exception absent both ‘clear evidence’ that the challenged actions ‘are entirely without color and [are taken] for reasons of harassment or delay or for other improper purposes,’ . . . and ‘a high degree of specificity in the factual findings of [the] lower courts.’ ” (Citations omitted.) Dow Chemical Pacific Ltd. v. Rascator Maritime S.A., supra, 344, quoting Weinberger v. Kendrick, 698 F.2d 61, 80 (2d Cir. 1982). “Whether a claim is colorable, for purposes of the bad-faith exception, is a matter of ‘whether a reasonable attorney could have concluded that facts supporting the claim might be established, not whether such facts had been established.’ ” (Emphasis in original.) Id., quoting Nemeroff v. Abelson, 620 F.2d 339, 348 (2d Cir. 1980). To determine whether the bad faith exception applies, the court must assess whether there has been substantive bad faith as exhibited by, for example, a party’s use of oppressive tactics or its wilful violations of court orders; “[t]he appropriate focus for the court ... is the conduct of the party in instigating or maintaining the litigation.” Dow Chemical Pacific Ltd. v. Rascator Martime S. A. supra, 345. Cf. Eastway Const. Corp. v. City of New York, 762 F.2d 243, 253 (2d Cir. 1985) (F. R. Civ. P. 11 has more expansive standard for imposition of sanctions than court’s inherent powers).

It is apparent that the trial court in this case did not follow these principles and impose these restrictions in making its sanctions decisions. On the remand, the defendant’s motion for sanctions is to be adjudicated in accordance with these principles and restrictions.

Ill

Finally, we consider the plaintiff’s claim that the court erred in denying his motion for sanctions. This claim is without merit.

The plaintiffs motion was based on Practice Book § 111, General Statutes § 51-84 and the Rules of Professional Conduct 3.3 The plaintiff claimed that the defendant had made certain specific untrue allegations and denials in his answer without reasonable cause, that his counsel had made false and misleading allegations in certain affidavits and statements in court, and that the defendant had given wilfully false and misleading testimony under oath during the course of the case. The court heard this motion on March 14, 1988, and on March 17,1988, issued the following ruling: “A review of the file in conjunction with the transcripts contained therein would not cause this court to grant sanctions against the defendant. The motion for sanctions is denied.”

It is obvious from our discussion above that the task of determining whether sanctions should be imposed is inherently fact bound, and requires carefully circumscribed discretion to be exercised by the trial court. The plaintiff’s claims on appeal simply ask us to find facts that the trial court did not find. Furthermore, the plaintiff did not seek a further articulation from the trial court of its decision. The plaintiff has not established that the trial court abused its discretion in denying his motion for sanctions.

There is error in part, the substituted supplemental judgment dated January 29,1988, is set aside, and the ease is remanded for a new hearing on the defendant’s motion for sanctions.

In this opinion the other judges concurred.

       Practice Book § 111 provides: “Any allegation or denial made without reasonable cause and found untrue shall subject the party pleading the same to the payment of such reasonable expenses, to be taxed by the court, as may have been necessarily incurred by the other party by reason of such untrue pleading; provided that no expenses for counsel fees shall be taxed exceeding two hundred fifty dollars for any one offense. Such expenses shall be taxed against the offending party whether he prevails in the action or not.”

       General Statutes § 52-99 provides: “Any allegation or denial made without reasonable cause and found untrue shall subject the party pleading the same to the payment of such reasonable expenses, to be taxed by the court, as may have been necessarily incurred by the other party by reason of such untrue pleading; provided no expenses for counsel fees shall be taxed exceeding ten dollars for any one offense.”

       General Statutes § 51-84 provides: “(a) Attorneys admitted by the superior court shall be attorneys of all courts and shall be subject to the rules and orders of the courts before which they act.
      “(b) Any such court may fine an attorney for transgressing its rules and orders an amount not exceeding one hundred dollars for any offense, and may suspend or displace an attorney for just cause.”

       Rule 11 of the Federal Rules of Civil Procedure provides: “Rule 11. signing OF PLEADINGS, MOTIONS, AND OTHER PAPERS: SANCTIONS. Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney’s individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the party’s pleading, motion, or other paper and state the party’s address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The rule in equity that the averments of an answer under oath must be overcome by the testimony of two witnesses or of one witness sustained by corroborating circumstances is abolished. The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.”

       Practice Book § 7 provides: “Each rule hereafter adopted shall be promulgated by being published once in the Connecticut Law Journal. Such rule shall become effective at such date as the judges of the superior court shall prescribe, but not less than sixty days after its promulgation. Prior to such adoption, there shall be published in the Connecticut Law Journal a summary of the proposed rules and a statement that a copy of those proposed rules will be mailed to any person upon request. The published notice of the proposed rule shall also state the time when, the place where and the manner in which interested persons may present their views thereon.”

       General Statutes § 52-99 mirrors Practice Book § 111, but limits the amount of attorney’s fees to ten dollars for any one offense. We need not rule in this case on the conflict between the amount stated in the statute and the amount stated in the rule.

       In this connection, we note that Practice Book § 119 provides in pertinent part: “The signing of any pleading, motion, objection or request shall constitute a certificate that the signer has read such document, that to the best of the signer’s knowledge, information and belief there is good ground to support it, and that it is not interposed for delay.” Although this rule does not specifically provide for sanctions for its violation; compare, e.g., Practice Book § 241 (court may charge party with expenses of opponent in establishing genuineness of document or truth of matter which party unreasonably refused to admit pursuant to Practice Book §§ 238 through 240); the trial court could undoubtedly impose sanctions for its violation. See In re Mongillo, 190 Conn. 686, 692, 461 A.2d 1387 (1983).
      Furthermore, although this rule, rather than federal rule 11, conceivably could have formed a basis of part of the court’s sanctions decision in this case, we do not consider it as such, for three reasons. First, the defendant did not invoke Practice Book § 119 in his motion for sanctions. Certainly, when an attorney or a party is faced with a claim for sanctions, the legal basis of that claim should be as specific as is reasonably possible. Second, it is clear that the defendant’s motion for sanctions went far beyond the confines of this rule. Third, the court did not rely on this rule in either of its sanctions decisions.

         In this connection, we note the trial court’s finding that the attorney trial referee, in his supplemental report, had raised a “very real concern that the plaintiff might be engaged in bad faith proceedings before the court. If plaintiff or his counsel had not previously been aware of the questionable nature of their tactics, the supplemental report should have awakened them to the problem.” We find no support in the referee’s supplemental report for this finding. The closest statement by the referee to such a concern was the statement, with regard to the plaintiff’s claim that he was denied an opportunity to present rebuttal evidence, that “[a]t best the plaintiff's agrument on this issue is specious.” Such a response by the referee falls far short of a finding or clear indication of bad faith litigation tactics so as to alert the plaintiff to the likelihood of sanctions to be forthcoming. Furthermore, we note that the critical factual findings supporting the bad faith exception must be supported by “clear evidence.” Dow Chemical Ltd. v. Rascator Maritime S.A., 782 F.2d 329, 344 (2d Cir. 1986).


author: Dupont, C. J.

text:
    George Vakalis v. Eugene M. Kagan et al.
    (6490)
    Dupont, C. J., O’Connell and Foti, Js.
    Submitted on briefs December 12, 1988
    decision released May 16, 1989

      Joseph P. Secóla and Lawrence S. Walters filed a brief for the appellant (plaintiff).

      JohnB. Nolan, Steven M. Greenspan and William H. Narwold filed a brief for the appellees (defendants).
   Dupont, C. J.

The dispositive issue in this case is whether the plaintiff, after a final judgment on the merits of an action against the defendants for breach of a partnership agreement, is barred by the principles of res judicata from thereafter pursuing a second cause of action stemming from the same set of facts against the same defendants. The present cause of action is in two counts and seeks a dissolution, accounting and winding up of the partnership of which the plaintiff alleges he is a member, and the appointment of a receiver for the partnership.

The defendants moved for summary judgment on the ground of res judicata. The trial court granted the motion and the plaintiff appeals from the judgment rendered thereon. We find no error.

The record reflects the following relevant facts. In August, 1979, the plaintiff and the defendants Eugene Kagan and Jack Heflin formed a general partnership known as Country Club Associates, in which each of the partners owned an undivided one-third interest. The partnership was established for the purpose of developing a retail shopping center in Worcester, Massachusetts. In June, 1980, the defendants Kagan and Jack Heflin made demand upon the plaintiff for a capital contribution. On August 11, 1980, a partnership meeting was held at which the plaintiff refused to pay the requested capital contribution. The defendants then opted to purchase the plaintiffs interest in the partnership and on August 12,1980, tendered to the plaintiff payment for his partnership interest, which the plaintiff refused.

On December 10, 1980, the plaintiff instituted his first action, a four count complaint against the defendants, Kagan, Jack Heflin and Allen Heflin, in Massachusetts Superior Court, alleging various acts of misconduct in connection with the partnership. Count one of the complaint alleged that the defendant Kagan had violated his duty as the plaintiffs attorney. Count two alleged that all of the defendants had committed certain unfair trade practices. Count three sought recovery for the plaintiffs services to the partnership based on quantum meruit. Count four alleged that the defendants had breached the partnership agreement by the allegedly illegal and fraudulent purchase of the plaintiffs partnership interest. The plaintiff sought in excess of $2,000,000 in damages.

Judgment for the defendants on counts one, two and three of the Massachusetts complaint was entered pursuant to a directed verdict. The plaintiff obtained a jury verdict against the defendants on the breach of partnership claim in count four in the amount of $362,934.30, which was satisfied.

In July, 1985, the plaintiff filed a second action, an eleven count complaint, in the United States District Court for the District of Connecticut. In that action the plaintiff alleged that he was a partner of Country Club Associates, and he set forth a number of federal and state law claims alleging that various individuals, including the defendants, had defrauded him of monies to which he was entitled as a partner. In his prayer for relief, the plaintiff requested that the court order the dissolution of the partnership and sought an accounting and the appointment of a receiver. The District Court concluded that, although some of the plaintiffs claims were denominated as federal claims, the action comprised the same essential facts and issues of the Massachusetts litigation, and was therefore barred by res judicata as to the defendants.

The plaintiff filed a third action, in Connecticut, in June, 1986. On appeal, he contends that the present action is distinct from the Massachusetts action and that the trial court erred in granting, on the basis of res judicata principles, the defendants’ motion for summary judgment.

Practice Book § 384 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”

“Our rules of res judicata are based on the public policy that ‘a party should not be allowed to relitigate a matter which it already has had an opportunity to litigate.’ In re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983) . . . .” Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 363-64, 511 A.2d 333 (1986). “ ‘The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. . . . If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made.’ (Emphasis added; citations omitted.) Wade’s Dairy, Inc. v. Fairfield, 181 Conn. 556, 559, 436 A.2d 24 (1980).” Lehto v. Sproul, 9 Conn. App. 441, 443-44, 519 A.2d 1214 (1987).

In determining whether a particular claim is precluded by the doctrine of res judicata, our Supreme Court has adopted the transactional test of the Restatement (Second), Judgments. Duhaime v. American Reserve Life Ins. Co., supra, 364-65. Section 24 of the Restatement provides that “the claim [that is] extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.” The transactional test measures the preclusive effect of a prior judgment, which includes any claims relating to the cause of action that were actually made or that might have been made. Duhaime v. American Reserve Life Ins. Co., supra, 365. “In determining the nature of a cause of action for these purposes, we have long looked to the ‘group of facts which is claimed to have brought about an unlawful injury to the plaintiff; Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 197, 91 A.2d 778 (1952); and have noted that ‘[e]ven though a single group of facts may give rise to rights for several kinds of relief, it is still a single cause of action.’ Id.” Duhaime v. American Reserve Life Ins. Co., supra.

The Massachusetts action and the present cause of action stem from a single group of facts, that is, the allegedly illegal and fraudulent purchase by the defendants of the plaintiff’s partnership interest in August, 1980. The plaintiff argues that the present action for a dissolution and winding up of the partnership is distinct from the Massachusetts action in that the present action seeks to recover the plaintiff’s total one-third equity interest in the partnership, while the Massachusetts litigation was solely an action for money damages for breach of the partnership agreement. We disagree.

It is apparent from the pleadings and transcripts of the Massachusetts litigation that the basis of the plaintiff’s claim for breach of partnership is the same as that of the present dissolution action, that is, the allegedly wrongful ejection of the plaintiff from the Country Club Associates partnership, and that, in both the present action and the Massachusetts action, the plaintiff sought compensation for the loss of his interest in the partnership. Thus, although the plaintiff has framed the present case as an action for the dissolution of the partnership rather than an action for breach, the plaintiff is, in effect, seeking to relitigate a single claim under a new theory in order to obtain an additional remedy. See Duhaime v. American Reserve Life Ins. Co., supra, 366.

The fact that the plaintiff seeks relief including an accounting, a sale and distribution of assets, and the appointment of a receiver, rather than money damages, does not transform this action into one distinct from the Massachusetts action. The transactional test of the Restatement applies to extinguish a claim by a plaintiff against a defendant even though the plaintiff in the second action seeks remedies or forms of relief not demanded in the first action. Lehto v. Sproul, supra, 444-45.

We conclude that the trial court did not err in finding the plaintiffs action barred by the principles of res judicata and in granting summary judgment for the defendants.

There is no error.

In this opinion the other judges concurred.

       The defendant Allen Heflin was alleged in the Massachusetts action to be a silent partner in the Country Club Associates.


text:
    State of Connecticut v. Lawrence R. Smith
    (7014)
    Dupont, C. J., O’Connell and Foti, Js.

      Argued December 15, 1988
    decision released May 16, 1989

      Julian Schlesingerf special public defender, with whom, on the brief, were David A. Dee and Carmine J. Giuliano, for the appellant (defendant).

      Vincent J. Dooley, deputy assistant state’s attorney, with whom, on the brief, was Michael J. Sullivan, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the trial court’s judgment of revocation of his probation pursuant to General Statutes § 53a-32. The defendant claims that the trial court erred (1) in finding that he violated his probation, (2) in revoking his probation, and (3) in allowing him to represent himself without an adequate waiver of counsel. We find error on the last claim, and, therefore, need not decide the first two claims.

The defendant was sentenced on July 31,1986, to two concurrent terms of four years, execution suspended after time served, with five years probation, on his guilty pleas to one count of larceny in the third degree and to one count of attempt to commit burglary in the third degree, in violation of General Statutes §§ 53a-124 and 53a-103. On February 14,1987, the defendant was arrested by police officers responding to a domestic complaint, and charged with robbery in the third degree, breach of peace, two counts of interfering with an officer, and two counts of assault on an officer.

On December 11,1987, the defendant was arrested pursuant to General Statutes § 53a-32 for violating his probation. After a probation revocation hearing, the court found that the defendant had engaged in conduct on February 14, 1987, that constituted a violation of his probation. The court thereupon revoked probation and sentenced the defendant to serve two concurrent terms of four years, less time served as of July 31,1986. The defendant was subsequently found not guilty on the charges that arose from his arrest on February 14, 1987.

In his last claim, dispositive of this appeal, the defendant alleges that the court should not have accepted his waiver of his right to counsel. The right to assistance of counsel is guaranteed to a defendant in a criminal proceeding by the sixth and fourteenth amendments to the constitution of the United States; Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); and by our state constitution. State v. Gethers, 193 Conn. 526, 533, 480 A.2d 435 (1984) (Gethers I); State v. Varricchio, 10 Conn. App. 265, 267, 522 A.2d 843 (1987). This constitutional right has been extended to defendants in probation violation hearings by § 53a-32 (a) of the General Statutes. Gentry v. Warden, 167 Conn. 639, 645, 356 A.2d 902 (1975).

“A criminal defendant also has the right to appear pro se in a state criminal trial ‘when he voluntarily and intelligently elects to do so.’ Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) . . . .” State v. Gethers, 197 Conn. 369, 376, 497 A.2d 408 (1985) (Gethers II); State v. Varricchio, supra, 267. Because a defendant has a constitutional right to the assistance of counsel at a hearing concerning the possible violation of his probation; Gentry v. Warden, supra, 645; he has the concomitant constitutional right to represent himself at such a hearing upon an effective waiver of the right to the assistance of counsel. See Gethers I, supra, 533.

When a defendant is deciding whether to appear pro se or with a lawyer, it is vital for the trial court to satisfy itself that the defendant, if he or she chooses to appear pro se, is fully aware of the risks involved and makes the choice knowingly. Gethers II, supra, 380-81; State v. Varricchio, supra, 268. Our role as a reviewing court is to determine whether the defendant effectively waived his right to counsel. State v. Varricchio, supra, 269.

“This determination is based upon [United States] Supreme Court guidelines. First, courts are required to ‘ “indulge every reasonable presumption against waiver” of fundamental constitutional rights . . . .’ Johnson v. Zerbst, [304 U.S. 458,] 464 [58 S. Ct. 1019, 82 L. Ed. 1461 (1938)]. In addition, ‘[presuming waiver from a silent record is impermissible.’ Carnley v. Cochran, 369 U.S. 506, 516, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962). It has long been acknowledged that ‘[t]he determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ Johnson v. Zerbst, supra. This important decision rests within the discre-tionof the trial judge. Id., 465 . . . .” (Citation omitted.) State v. Varricchio, supra, 269-70.

Practice Book § 959 provides that “[a] person who is charged with an offense punishable by imprisonment, or who is charged with violation of probation . . . shall be entitled to have counsel represent him unless: (1) He waives such appointment pursuant to [Practice Book] Sec. 961 . . . .” Once the requirements of Practice Book § 961 are satisfied, the defendant’s constitutional right to self-representation is triggered. The rule is written to implement the constitutional right of self-representation as well as to protect the defendant’s constitutional right to the assistance of counsel. Gethers I, supra, 534; State v. Varricchio, supra, 269; State v. Blackwell, 9 Conn. App. 587, 595, 520 A.2d 634, cert. denied, 203 Conn. 804, 525 A.2d 519 (1987).

The defendant argues that the court failed to comply with the provisions of Practice Book § 961 in that the court did not inquire into the educational background or intelligence of the defendant, did not advise the defendant that he could have standby counsel appointed, or advise him of the range of punishments that he faced upon the revocation of his probation, or of the specific dangers of self-representation. The defendant also argues that the court should have advised him that the standard of proof in a revocation hearing is not “beyond a shadow of a doubt.” We conclude that the trial court failed to comply substantially with Practice Book § 961 (3), and, therefore, limit our discussion of the defendant’s arguments to that section.

The defendant asserts that he was not informed of “the range of punishments that he faced upon the revocation of probation.” Practice Book § 961 (3) requires that the court be satisfied that the defendant “[comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case. . . .” A court is entitled to presume that defense counsel has explained the nature of the offense in sufficient detail. State v. Blackwell, supra, 597, citing Gethers I, supra, 537. In this case, however, the defendant stated, on the record, that he asked his attorney about the nature of the proceedings instituted against him and whether he was “going to start picking a jury,” whereupon his attorney replied that the proceedings did not involve selecting a jury but rather concerned the charge that the defendant had violated his probation. When the defendant asked what this particular proceeding entailed, his attorney allegedly said: “I don’t know, ask Shorty.” The defendant stated that “Shorty” was a fellow inmate. We cannot presume, therefore, that the defendant’s attorney had explained the nature of the offense to the defendant.

It also is not apparent that the defendant understood the “range of permissible punishments” that could occur if his probation were revoked. The state argues that the Blackwell presumption, that a court is entitled to presume that a defendant has had the nature of the offense explained to him, leads to the conclusion that the defendant understood the range of permissible punishments since the latter conclusion is embodied within the former presumption. For the same reasons discussed above, however, we cannot indulge in the presumption.

The state argues that the defendant’s attorney and the defendant’s probation officer stated, on the record, in the presence of the defendant, that the defendant was exposed to “forty-four months” and that he was sentenced in both cases to “four years, execution suspended after time served and five years probation.” This testimony, however, did not concern the “range of permissible punishments” that would result if the court found that the defendant had violated the terms of his probation. Rather, this testimony was in response to the court’s request for clarification regarding the original July 31, 1986 sentence imposed upon the defendant. This testimony also took place eleven days before the defendant sought to invoke his right to represent himself. Accordingly, we cannot conclude that the defendant sufficiently understood the “nature of the charges and proceedings” and “the range of permissible punishments” involved in the revocation hearing before he allegedly waived the assistance of counsel.

We conclude that the trial court failed to comply substantially with Practice Book § 961 (3). Because § 961 protects a defendant’s right to the assistance of counsel, as well as his corollary right to self-representation; Gethers I, supra, 534; substantial defective compliance with the rule requires reversal “even if no particular prejudice is shown and even if there is overwhelming evidence of guilt.” State v. Varricchio, supra, 270.

In view of our holding on this claim, it is unnecessary to consider the defendant’s remaining claims of error.

There is error, the judgment is set aside and the case is remanded for a new hearing.

In this opinion the other judges concurred.

       One of the conditions of probation to which the defendant had agreed after his sentencing on July 31,1986, was that he not violate any criminal law of the state of Connecticut. A revocation of probation proceeding based upon a violation of a criminal law need not be deferred until after a disposition of the charges underlying the arrest because the purpose of a probation revocation hearing is to determine whether a defendant’s conduct constituted an act sufficient to support a revocation of probation; Payne v. Robinson, 10 Conn. App. 395, 503 A.2d 917 (1987); rather than whether the defendant had, beyond a reasonable doubt, violated a criminal law. The proof of the conduct at the hearing need not be sufficient to sustain a violation of a criminal law. Id., 402.

       The portion of the transcript relevant to the defendant’s claim states:
      “The Court: Mr. Smith, my question was whether or not throughout the balance of this trial you wish to have Mr. Hines excused on the basis of malicious and intentional and ineffective counsel?
      “The Defendant: No, no I don’t. I would like for him to be here just for exactly what I just told you.
      “The Court: And what was that Mr. Smith? What do you want him there for?
      “The Defendant: The court was recessed for five minutes. We can back—
      “The Court: What services do you wish to have him continue to serve you with?
      “The Defendant: As a legal advisor.
      “The Court: I see.
      “The Defendant: As a witness.

        “The Court: Well, he cannot serve you as a witness, you understand that?
      “The Defendant: Well, he cannot serve me where he came out of that room and broke these people up out of a huddle after you ordered a sequestration and they got up on the stand under oath and said they did not speak to each other sir.
      “The Court: You do wish to have Mr. Hines continue to sit to your left?
      “The Defendant: Exactly.
      “The Court: And be available to you as a legal advisor?
      “The Defendant: Exactly, sir.
      “The Court: Mr. Hines, I realize the impasse of his making a formal accusation of malicious, intentional and ineffective counsel.
      “Mr. Hines: I can’t possibly represent him, Judge. It’s impossible at this point.
      “The Defendant: Well, for the sake of argument, sir, I’ll see you later.
      “Mr. Hines: As much as I’d like to, and I think I’ve done a lot of work on this case, with that allegation there is no possibility.
      “The Defendant: I’ll see you later.
      “Mr. Hines: Especially now with an attorney client relationship now, when the gentleman is saying—
      “The Defendant: There was never one, sir, from the outset of these proceedings. Excuse me, Your Honor, I asked Mr. Hines, I said, ‘What’s what,’ he said, ‘You’ve been hit with a violation of probation.’ I was under the assumption I was here to pick a jury trial. They hit me with two counts of violation of probation. He came in the back room, I said, ‘Sir, what’s going on, and am I going to start picking a jury today?’ He said to me, he said, ‘No they are going to start a violation of probation.’ And I said, ‘What does that consist of?’ He says, T don’t know, ask Shorty.’ Shorty, Your Honor, is an inmate.
      “The Court: Are you therefore dismissing Mr. Hines?
      “The Defendant: I’m dismissing him.
      “The Court: Thank you, Mr. Smith. Mr. Hines, you have just been dismissed.
      “Mr. Hines: May I be excused, Your Honor?
      “The Court: Yes, you may. All right, do you wish to call a witness, Mr. Smith?
      “The Defendant: Yes sir, I do. I wish to call Theresa M. Morris to the stand please.
      “Mr. Sullivan: Your Honor, I’m sure it’s implied, but given the difficulty which this fairly routine type of proceeding has a history of, I would like to know whether or not the defendant is asking for standby counsel or simply wishes to proceed.
      “The Defendant: We can proceed, sir.
      “Mr. Sullivan: As pro se?

        “The Court: Are you then waiving counsel from this point forward?
      “The Defendant: I am waiving.
      “The Court: Do you understand that by waiving counsel you’re putting yourself at a disadvantage?
      “The Defendant. Exactly, sir.
      “The Court: Do you understand by waiving counsel you will be dealing with evidentiary issues that an attorney might be better aware of than you are?
      “The Defendant: Exactly.
      “The Court: Do you understand that by waiving counsel you are agreeing to putting yourself in a weaker position than you might otherwise be in?
      “The Defendant: Yes, sir.
      “The Court: On what basis do you feel that you have the capacity to continue without an attorney?
      “The Defendant: Because I believe I can prove my allegations beyond a shadow of a doubt, sir.
      “The Court: Do you feel you have enough of an understanding of the legal techniques and legal matters and the law?
      “The Defendant: Yes, sir, I do.
      “The Court: Of the law both in terms of the statutes and the case law and evidentiary matters in courtrooms?
      “The Defendant: Yes, yes, sir, I do.
      “The Court: And you would prefer to proceed yourself without having counsel appointed at this time?
      “The Defendant: Yes, sir.
      “The Court: All right you may proceed.”

       General Statutes § 53a-32 (a) provides in pertinent part: “At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. . . . Upon such arrest and detention, the probation officer shall immediately so notify the court or any judge thereof. Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing, the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge, shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf.”

       Practice Book § 961 provides: “A defendant shall be permitted to waive his right to counsel and shall be permitted to represent himself at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant:
      “(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
      “(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent himself;
      “(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and
      “(4) Has been made aware of the dangers and disadvantages of self-representation.”

       The defendant told the court that he could prove his allegations “beyond a shadow of a doubt.” The defendant may not have been referring to the standard of proof to be used at his hearing in the context in which the remark was made. See footnote 2, supra.

       General Statutes § 53a-32 (b) provides in pertinent part: “If such violation is established, the court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.”