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*********************************************** 
CATHERINE LEDERLE v. STEVAN SPIVEY

(SC 20016)

Robinson, C. J., and Palmer, McDonald, D’Auria,

Mullins, Kahn and Ecker, Js.

Syllabus

The plaintiff, whose marriage to the defendant previously had been dissolved, appealed to this court from the judgment of the Appellate Court,

which reversed the trial court’s award of appellate attorney’s fees to the

plaintiff. Following the dissolution of the parties’ marriage, the defendant

filed a motion to open the dissolution judgment, which the trial court

denied. The defendant appealed to the Appellate Court, which upheld

the denial of the motion. In his appeal from the denial of the motion

to open, the defendant claimed that the trial court conducted part of

the hearing on the motion to open in chambers and off the record

and improperly denied the motion without hearing testimony or taking

evidence. The plaintiff thereafter filed a motion for attorney’s fees

incurred in defending that appeal. The trial court, finding that the defendant’s appeal from the denial of the motion to open was taken in bad

faith and was entirely without color, awarded the plaintiff attorney’s

fees under the bad faith exception to the American rule that a prevailing

party may not recover attorney’s fees from the opposing party in the

absence of a statutory exception or certain exceptional circumstances.

On appeal from the trial court’s award of attorney’s fees, the Appellate

Court concluded that the trial court had abused its discretion in awarding

attorney’s fees to the plaintiff on the basis of the bad faith exception

because its decision lacked the requisite high degree of specificity as

to its finding that the defendant’s appeal from the denial of the motion

to open was entirely without color. Subsequently, the plaintiff, on the

granting of certification, appealed to this court. Held:

1. The Appellate Court incorrectly concluded that the trial court had abused

its discretion in awarding attorney’s fees to the plaintiff under the bad

faith exception to the American rule, the trial court’s subordinate findings having been sufficiently specific to support its ultimate findings

that the defendant acted in bad faith in knowingly bringing appellate

claims that were entirely lacking in color; the trial court’s findings that

there was no evidence in the record to support the defendant’s claim that

part of the hearing on the motion to open was conducted in chambers

and off the record, that the defendant was physically present at all court

proceedings and did not object on the ground that the court was holding

part of the hearing in chambers and off the record, and that the parties

expressly agreed in open court to a bifurcated process by which the

trial court would hear evidence only if it made a certain legal conclusion

that it ultimately did not make established the defendant’s firsthand

knowledge regarding the basis of his appellate claims and supported

the ultimate finding that the defendant knew that his claims lacked merit

and, therefore, acted in bad faith in pursuing those claims on appeal.

2. The defendant could not prevail on his claim that, even if the trial court

did not abuse its discretion in determining that an award of attorney’s

fees was warranted under the bad faith exception to the American rule,

the amount of the award was unreasonable and excessive: the trial court

acted within its discretion in awarding the plaintiff $30,000 in attorney’s

fees, the evidence from the record of the multiday hearing having indicated that the court, in awarding the plaintiff less than one half of

the fees requested, considered the testimony of the plaintiff’s attorney

regarding his fee affidavit, the fee affidavit itself, the relative rates

charged by the attorneys for the parties, and the challenges raised by

the defendant regarding certain charges; moreover, a reasonable reading

of the transcripts and the fee affidavit supported the conclusion that

the trial court had discounted all but the fees for the services rendered

by the plaintiff’s attorney himself.

Argued January 24—officially released August 27, 2019

Procedural History
Action for the dissolution of a marriage, and for other

relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, and referred to the judicial

district of Middlesex, Regional Family Trial Docket;

thereafter, the case was tried to the court, Abery-Wetstone, J.; judgment dissolving the marriage and granting

certain other relief; subsequently, the court, Emons, J.,

denied the defendant’s motion to open the judgment,

and the defendant appealed to the Appellate Court,

DiPentima, C. J., and Alvord and Harper, Js., which

affirmed the trial court’s judgment; thereafter, the court,

Emons, J., granted the plaintiff’s motion for attorney’s

fees, and the defendant appealed to the Appellate Court,

DiPentima, C. J., and Beach and Danaher, Js., which

reversed the trial court’s award of attorney’s fees and

remanded the case for further proceedings, from which

the plaintiff, on the granting of certification, appealed

to this court. Reversed; judgment directed.

Tara C. Dugo, with whom, on the brief, was Norman

A. Roberts II, for the appellant (plaintiff).

David V. DeRosa, for the appellee (defendant).
Opinion

KAHN, J. In this dissolution of marriage action, the

plaintiff, Catherine Lederle, appeals, following our grant

of certification,1from the judgment of the Appellate

Court reversing the decision of the trial court, which

had awarded appellate attorney’s fees to the plaintiff

under the bad faith exception to the American rule.2

The plaintiff contends that the Appellate Court did not

accord the proper level of deference in determining

that the trial court’s findings lacked sufficient specificity. The defendant, Stevan Spivey, responds that the

Appellate Court properly applied the abuse of discretion

standard and also correctly concluded that, in determining that the appellate claims lacked color, the trial court

improperly assessed the conduct of the defendant’s

attorney rather than that of the defendant. The defendant claims that the amount of the award was unreasonable and excessive because (1) the plaintiff’s success

in the appeal for which fees were awarded was not

due to the efforts of the plaintiff’s counsel, and (2) the

defendant’s attorney charged him a significantly lower

amount of fees for representing him in that appeal.3

We reverse the judgment of the Appellate Court and

conclude that the trial court did not abuse its discretion

in setting the amount of the fees.

The Appellate Court opinions in the present case have

set forth the following relevant facts and procedural

history. ‘‘The parties were married in Darien on December 31, 1998. One child was born of the marriage in 2000.

Thereafter, the marriage broke down irretrievably, and,

in March, 2005, the plaintiff commenced an action seeking to dissolve the marriage. On May 2, 2007, the court,

Abery-Wetstone, J., rendered a judgment of dissolution

[2007 decision]. As part of this decision, the court

acknowledged the plaintiff’s claim that she needed to

move to Virginia in order to remain competitive in her

employment with Lexmark, and found that it was in

the best interest of the child to relocate with her to

Virginia. The defendant appealed from the judgment,

arguing, inter alia, that the court improperly permitted

the plaintiff to relocate with their minor child to Virginia. [The Appellate Court] affirmed the judgment of

the court, and [the] Supreme Court denied certification

to appeal. Lederle v. Spivey, 113 Conn. App. 177, 965

A.2d 621 [(Lederle I)], cert. denied, 291 Conn. 916, 970

A.2d 728 (2009).’’ Lederle v. Spivey, 151 Conn. App. 813,

814–15, 96 A.3d 1259 (Lederle II), cert. denied, 314 Conn.

932, 102 A.3d 84 (2014). The defendant subsequently

learned that the plaintiff had not started her employment at Lexmark because she lost that position but had

started a position at a different company in Virginia.

‘‘The defendant subsequently filed an amended

motion to open the judgment, in which he claimed that

[t]he plaintiff, in her trial testimony committed fraud

with respect to the issue of her Lexmark employment
and specifically whether or not [her Lexmark employment position] was available in Virginia on the dates

testified to. . . . According to the defendant, [t]he

plaintiff had a continuing duty to disclose the status of

her job situation with Lexmark after [the May 2, 2007]

judgment [of the trial court], and before the Appellate

Court issued a . . . decision in [March] 2009. . . . The

defendant further argued that the plaintiff’s failure to

disclose the status of her job situation with Lexmark

constituted fraud with respect to a material fact or facts

which ultimately led to [the trial] court’s conclusion that

[the] plaintiff and the minor child should be permitted

to relocate from the state of Connecticut to the state

of Virginia for primarily employment purposes. . . .

‘‘The court, Emons, J., heard oral argument on the

motion and, after receiving a memorandum of law from

counsel for each party in support of their position,

issued a memorandum of decision denying the motion

to open on January 28, 2013 [2013 decision]. In reaching

its decision, the court found that [a]fter the May 2, 2007

judgment, on June 5, the plaintiff lost her employment

at Lexmark. . . . On or about August 20, 2007, the

plaintiff relocated to Virginia and at or about the same

time, began a new job at Xerox, also located in Virginia.

The court noted that Judge Abery-Wetstone found

numerous reasons why relocation was in the best interest of the minor child and that no single factor controlled the decision of the court. On the basis of the

foregoing, the court held that while the plaintiff did

have a duty to disclose that she lost her Lexmark job

and procured a new one at Xerox, prior to the Appellate

[Court’s] decision, her failure to disclose [did] not constitute fraud.’’ (Citations omitted; internal quotation

marks omitted.) Lederle v. Spivey, 174 Conn. App. 592,

594–95, 166 A.3d 636 (2017) (Lederle III).

The defendant appealed from the judgment of the

trial court to the Appellate Court, claiming that the

court ‘‘(1) improperly held a portion of the hearing on

the motion to open in chambers and off the record; and

(2) abused its discretion by deciding the motion to open,

which was based on a claim of fraud and therefore

involved a question of material fact, without the benefit

of sworn testimony or other evidence.’’4 Lederle II,

supra, 151 Conn. App. 814. The Appellate Court did not

directly address either of the defendant’s claims. It held

that the record was inadequate to review the defendant’s first claim. Id., 816. The court rejected the defendant’s second claim on the basis of its conclusion that,

once the final judgment of dissolution had been rendered, as a matter of law, the plaintiff had no continuing

duty to disclose the loss of her Lexmark employment.5

Id., 819.

While the defendant’s appeal from the denial of his

motion to open was pending before the Appellate Court,

the plaintiff filed the motion that gave rise to the present
appeal, seeking appellate attorney’s fees for the then

pending appeal. The trial court held a hearing on the

motion on October 30, 2013, but, because the appeal

before the Appellate Court was still pending, continued

the matter until after the defendant’s appeal was

resolved. On February 10, 2015, after the Appellate

Court had affirmed the judgment of the trial court denying the motion to open the judgment of dissolution;

Lederle II, supra, 151 Conn. App. 814; the trial court

resumed the hearing on the motion for appellate attorney’s fees and, subsequently, issued a memorandum of

decision, granting the plaintiff’s motion for attorney’s

fees on the basis of its finding that the defendant’s

appeal was taken in bad faith and was entirely without

color (2015 decision).6

The defendant appealed from the judgment of the

trial court to the Appellate Court, which held that the

trial court had abused its discretion in awarding attorney’s fees because ‘‘its decision lacked the ‘high degree

of specificity’ as to its finding that the defendant’s

appeal was entirely without color.’’ Lederle III, supra,

174 Conn. App. 598. Specifically, the Appellate Court

explained that the trial court, in its 2015 decision, (1)

did not properly set forth separate, subordinate findings

to support each of its ultimate findings as to lack of

colorability and bad faith; id., 603–604; and (2) in

determining that the defendant’s claims lacked color,

improperly failed to apply the proper standard for colorability, which, according to the Appellate Court, should

have been the standard that applies to a party rather

than an attorney. Id., 604. This appeal followed.

We begin by setting forth the general principles governing the application of the bad faith exception to the

American rule. ‘‘[T]his 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 [attorney’s] fee from the loser. . . . That rule does not apply,

however, where the opposing party has acted in bad

faith. . . . 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. . . . This bad faith

exception applies, not only to the filing of an action,

but also in the conduct of the litigation. . . . It applies

both to the party and his counsel.’’ (Citations omitted;

internal quotation marks omitted.) Maris v. McGrath,

269 Conn. 834, 844–45, 850 A.2d 133 (2004).

We have explained that, in order to impose sanctions

under the bad faith exception, ‘‘the trial court must

find both that the litigant’s claims were entirely without

color and that the litigant acted in bad faith.’’ (Emphasis

in original.) Berzins v. Berzins, 306 Conn. 651, 663, 51

A.3d 941 (2012). The court must make these findings

with ‘‘a high degree of specificity . . . .’’ (Internal quo-
tation marks omitted.) Id., 662. The requirement of an

independent finding that the challenged actions or

claims are entirely without color ensures that ‘‘fear of

an award of [attorney’s] fees against them will not deter

persons with colorable claims from pursuing those

claims . . . .’’ (Internal quotation marks omitted.)

Maris v. McGrath, supra, 269 Conn. 845. The requirement of that independent finding means that, if a court

concludes that a claim is colorable, it cannot award

attorney’s fees, even if the court were to conclude that

the person against whom sanctions are sought acted

in bad faith. When, as in the present case, the actor’s

bad faith is predicated on the theory that he knowingly

brought claims entirely lacking in color, colorability

and bad faith are, by necessity, closely linked. For that

reason, we take the opportunity to clarify the distinction

between colorability and bad faith.

Colorability is measured by an objective standard,

whereas bad faith is measured by a subjective one.

Colorability focuses on the merits of the claim. A ‘‘colorable claim’’ is defined as one ‘‘that is legitimate and

that may reasonably be asserted, given the facts presented and the current law (or a reasonable and logical

extension or modification of the current law).’’ Black’s

Law Dictionary (9th Ed. 2009) p. 282. Put another way,

a claim is colorable if, given the facts presented and

the current law (or a reasonable extension thereof),

the claim arguably has merit. Although we have stated

that the standard for colorability varies depending on

whether the person against whom sanctions are sought

is a party or the party’s attorney; see Maris v. McGrath,

supra, 269 Conn. 847; we now clarify that the inquiry

is the same in either case. As the United States Court

of Appeals for the Second Circuit has explained, ‘‘[a]

claim is colorable, for the purpose of the bad faith

exception, when it has some legal and factual support,

considered in light of the reasonable beliefs of the individual making the claim.’’ Nemeroff v. Abelson, 620 F.2d

339, 348 (2d Cir. 1980). Put simply, the colorability

inquiry asks whether there is a reasonable basis, given

the facts, for bringing the claim, regardless of whether

it is brought by an attorney or a party.

A determination of bad faith, by contrast, rather than

focusing on the objective, reasonable beliefs of the person against whom sanctions are sought, focuses on

subjective intent. We have emphasized that, in

determining whether a party has engaged in bad faith,

‘‘[t]he appropriate focus for the court . . . is the conduct of the party in instigating or maintaining the litigation.’’ (Internal quotation marks omitted.) Maris v.

McGrath, supra, 269 Conn. 847. From that conduct,

the court may infer the subjective intent of the person

against whom sanctions are sought. Some examples of

evidence that would support a finding of bad faith

include ‘‘a party’s use of oppressive tactics or its wilful

violations of court orders’’; id., 845–46; or a finding
that the challenged actions ‘‘[are taken] for reasons of

harassment or delay or for other improper purposes

. . . .’’ CFM of Connecticut, Inc. v. Chowdhury, 239

Conn. 375, 394, 685 A.2d 1108 (1996), overruled in part

on other grounds by State v. Salmon, 250 Conn. 147,

155, 735 A.2d 333 (1999). When, as in the present case,

the claim that an individual has brought or maintained

an action in bad faith is predicated on the individual’s

personal knowledge that there is no factual support for

the claim or claims at issue, in order to infer that the

individual acted in bad faith, the court must make a

finding that the individual knew of the absence of that

factual basis.

Applying these principles to the present case, we

disagree with the Appellate Court’s conclusion that the

trial court, in its 2015 decision, abused its discretion in

awarding attorney’s fees to the plaintiff. In arriving at

our conclusion, we are mindful that, in applying the

abuse of discretion standard, our ‘‘review of the trial

court’s decision is a deferential one. First, we observe

that, [w]here the trial court reaches a correct decision

but on [alternative] grounds, this court has repeatedly

sustained the trial court’s action if proper grounds exist

to support it. . . . [W]e . . . may affirm the court’s

judgment on a dispositive [alternative] ground for which

there is support in the trial court record. . . . Additionally, [i]t is well established that we review the trial

court’s decision to award attorney’s fees for abuse of

discretion. . . . This standard applies to the amount

of fees awarded . . . and also to the trial court’s determination of the factual predicate justifying the award.’’

(Citation omitted; internal quotation marks omitted.)

Berzins v. Berzins, supra, 306 Conn. 661.

In its 2015 decision, the trial court found that the

defendant acted in bad faith in taking an appeal in

Lederle II and that his appellate claims were entirely

lacking in color. The court accordingly awarded sanctions against the defendant, as opposed to his attorney.

See Lederle III, supra, 174 Conn. App. 602. The trial

court predicated its ultimate findings on the following

subordinate factual findings. As to the defendant’s claim

on appeal that the trial court improperly held a portion

of the hearing on the motion to open in chambers and

off the record, the court found that nothing in the record

provided support for that claim. The trial court found

that the record demonstrated only two instances in

which the court conducted any business related to this

matter in chambers: first, prior to the start of the hearing

to discuss procedural issues with counsel for both parties and, second, to read two decisions as requested

by counsel. The court further found that, although the

defendant was physically present at all court proceedings, neither he nor his attorney raised any objection

on the basis that the court was holding a portion of the

hearing in chambers and off the record.
As to the defendant’s claim on appeal that the trial

court, in its 2013 decision, abused its discretion by

ruling on the motion to open—which was predicated

on the basis of a claim of fraud—without hearing testimony or taking evidence, the court, in its 2015 decision,

predicated its ultimate determination that the claim

lacked any indicia of color on two independent findings,

either of which on its own would support the court’s

ultimate finding. First, the court found that the parties

agreed to a two part procedure by which the court

would first determine whether, but-for the plaintiff’s

job with Lexmark, the trial court, in its 2007 decision,

would not have granted her motion for permission to

relocate with the minor child to Virginia. If, and only

if, the court answered that question in the affirmative,

would it consider whether an evidentiary hearing would

be required to resolve the motion to open. The court

found that it had explained the proposed bifurcated

procedure not only to counsel, but also to both the

plaintiff and the defendant.7 Second, the court found

that the transcript of the October 24, 2012 hearing

clearly revealed that, in lieu of an evidentiary hearing,

the parties agreed to proceed by filing simultaneous

briefs with factual stipulations.

The trial court’s subordinate findings were sufficiently specific to support its ultimate findings that the

defendant acted in bad faith in knowingly bringing

appellate claims that were entirely lacking in color.8 As

to the defendant’s first appellate claim—that the court

conducted part of the hearing in chambers and off the

record—the court’s findings were sufficiently specific

to support the conclusion that the claim was entirely

lacking in color. The court found not only that there

was no evidence to support the claim, but also found

that the record reflected the purpose of the two

instances during the hearing when the court retired to

chambers. The first instance was prior to the hearing

and related to purely procedural matters and the second

instance was when the court retired to chambers to

read decisions provided to it by counsel. It is difficult

to imagine what more could be said, once a court has

found that no evidence supports the claim and that the

only relevant evidence in the record expressly contradicts the claim. The court further found that the defendant was physically present to observe that lack of

evidence. That finding establishes the defendant’s firsthand knowledge and supports the ultimate finding that

the defendant knew that his claim lacked merit and,

therefore, acted in bad faith in pursuing the claim on

appeal.

As to the defendant’s second appellate claim—that

the trial court, in its 2013 decision, improperly denied

the motion to open without hearing testimony or taking

evidence—the court found, in its 2015 decision, that,

during the hearing on the motion to open, the parties
had agreed that the court would first resolve the threshold legal issue of materiality and would subsequently

hold an evidentiary hearing only if it concluded that

the plaintiff’s employment with Lexmark was a material

fact. Excerpts of the transcripts of the October 24, 2012

hearing on the defendant’s motion to open were

attached in an appendix to the trial court’s 2015 decision. During the October 24, 2012 hearing, after some

initial colloquy regarding disputed facts, counsel for

both parties proposed that the court decide the motion

to open in two steps. As the attorney for the plaintiff

explained to the court, they proposed ‘‘a methodology

[that] perhaps [would result in the court] not having

to sort through these and other important facts . . . .’’

(Emphasis added.) The parties had engaged in a series

of discussions in an attempt to ‘‘boil this down to a

nut.’’ As a result of those discussions, they agreed that

the defendant could prevail on his motion to open the

judgment only if the trial court would not have granted

the plaintiff’s motion for permission to relocate—and

the Appellate Court would not have upheld that ruling—

if she had not been employed by Lexmark in Virginia.

Accordingly, they both agreed that the court should

first resolve the purely legal determination of whether

the plaintiff’s employment with Lexmark was the ‘‘butfor’’ cause underlying both the trial court’s decision

granting the plaintiff’s motion for permission to relocate

and the Appellate Court decision upholding that ruling.

The trial court would proceed to the evidentiary phase

only if it answered that legal question in the affirmative.

The parties therefore requested that, prior to hearing

any evidence, the court first review both the 2007 decision rendering final judgment of dissolution and granting permission to the plaintiff to relocate to Virginia

and the Appellate Court decision in Lederle I that

affirmed the judgment of the trial court. See Lederle I,

supra, 113 Conn. App. 177.

Before the court took a recess to read the two decisions, it clarified in open court, in the presence of both

parties and their counsel, its understanding of the

agreed upon procedure as requiring the court to ‘‘make

an initial determination as to whether this is a ‘butfor’ situation.’’ The court further clarified the parties’

agreement that, if the court resolved the motion to open

on the threshold issue, ‘‘we’re done and you can do

whatever you want to do with your motions and everything like that.’’ Finally, the trial court made clear to

the parties its understanding that, if the court were

unable to resolve the motion on the initial legal issue,

then ‘‘correct me if I’m wrong . . . we would have to

schedule a lengthy factual hearing . . . .’’

Following the court’s review of the decisions of the

trial court and the Appellate Court, in its 2013 decision,

the court concluded that the plaintiff’s employment

with Lexmark was not the ‘‘but-for’’ cause of the decision granting the plaintiff permission to relocate. To
the contrary, the court explained, the plaintiff’s employment was only one among ‘‘numerous reasons’’ that the

2007 decision had determined that relocation was in

the best interest of the minor child. The court quoted

from the 2007 decision, which specifically stated that

‘‘[n]o single factor has controlled the decision of the

court’’ and that the court had weighed ‘‘all the evidence’’

and considered ‘‘all the factors relevant to the child’s

best interest’’ in determining to grant the plaintiff permission to relocate. The 2007 decision also noted that,

in granting permission to relocate, the court had considered ‘‘the body of case law regarding best interest, the

specific facts of this case, the testimony and credibility

of the various witnesses here, and the court’s assessment and evaluation of the best interest of this specific

child. The court has considered the recommendations

of both the [guardian ad litem] and the family relations

counselor of sole custody to the mother and approval

of the relocation.’’ On the basis of its review of the

Appellate Court’s decision in Lederle I, the trial court

also concluded that the plaintiff’s employment with Lexmark was not material to that court’s affirmance of the

trial court’s 2007 decision.9

The trial court’s findings as to the defendant’s second

appellate claim are sufficiently specific to support its

ultimate findings that the claim lacked any colorability,

and that the defendant acted in bad faith by knowingly

pursuing a claim entirely lacking in color. The essence

of the defendant’s claim on appeal in Lederle II was

that the court improperly decided the motion to open

without taking any evidence. As to the colorability of

that claim, the trial court found that the parties

expressly agreed in open court to the bifurcated procedure by which the court would hear evidence only if it

determined that the plaintiff’s employment with Lexmark was a fact that was material to both the trial

court’s 2007 decision and the Appellate Court’s decision

in Lederle I. The trial court also found that it concluded,

in its 2013 decision, that the plaintiff’s Lexmark employment was not material to either of those decisions. The

trial court’s resolution of the motion to open, therefore,

rested entirely on a legal conclusion and did not require

any evidence—which is precisely how the parties had

agreed to proceed. Those findings support the trial

court’s ultimate determination in its 2013 decision that

this claim lacked any indicia of color.10 The court further

found that it had clarified in open court, in the presence

of the parties and their attorneys, that this procedure

was in accordance with the agreement between the

parties. The defendant therefore had firsthand knowledge that his appellate claim lacked any indicia of color.

That finding supports the court’s ultimate finding in its

2013 decision that the defendant acted in bad faith

in pursuing this claim on appeal.11 For the foregoing

reasons, we conclude that the Appellate Court incorrectly concluded that the trial court had abused its
discretion in awarding attorney’s fees to the plaintiff

on the basis of the bad faith exception to the American rule.

Finally, we address the defendant’s claim that, even if

the trial court did not abuse its discretion in determining

that an award was warranted under the bad faith exception to the American rule, the amount of the award was

unreasonable and excessive because (1) the plaintiff’s

success at the Appellate Court in Lederle II was not

due to the efforts of plaintiff’s counsel, and (2) the fees

sought by the plaintiff were significantly higher than

the fees charged by the defendant’s attorney for his

work on the appeal. We first set forth the applicable

standard of review. ‘‘[T]he amount of attorney’s fees to

be awarded rests in the sound discretion of the trial

court and will not be disturbed on appeal unless the

trial court has abused its discretion: A court has few

duties of a more delicate nature than that of fixing

counsel fees. The degree of delicacy increases when

the matter becomes one of review on appeal. The principle of law, which is easy to state but difficult at times

to apply, is that only in case of a clear abuse of discretion

by the trier may we interfere. . . . The trier is always

in a more advantageous position to evaluate the services

of counsel than are we.’’ (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265

Conn. 210, 258–59, 828 A.2d 64 (2003).12

‘‘It is well established that a trial court calculating a

reasonable attorney’s fee makes its determination while

considering the factors set forth under rule 1.5 (a) of

the Rules of Professional Conduct. Sorrentino v. All

Seasons Services, Inc., [245 Conn. 756, 775, 717 A.2d

150 (1998)] (‘[r]ule 1.5 [a] of the Rules of Professional

Conduct lists the factors that ordinarily determine the

reasonableness of an attorney’s fee’); Andrews v.

Gorby, 237 Conn. 12, 24, 675 A.2d 449 (1996) (‘[t]ime

spent is but one factor in determining the reasonableness of an attorney’s fee’). A court utilizing the factors

of rule 1.5 (a) considers, inter alia, the time and labor

spent by the attorneys, the novelty and complexity of

the legal issues, fees customarily charged in the same

locality for similar services, the lawyer’s experience

and ability, relevant time limitations, the magnitude of

the case and the results obtained, the nature and length

of the lawyer-client relationship, and whether the fee

is fixed or contingent.’’ (Footnote omitted.) Schoonmaker v. Lawrence Brunoli, Inc., supra, 265 Conn. 259.

The fee hearing took place over the course of four

days. The trial court began the hearing on October 30,

2013, but postponed the proceedings until the resolution of the appeal in Lederle II. The final three days of

the hearing were held in February, 2015, at which time

the court heard testimony and took evidence concerning the amount of the plaintiff’s attorney’s fees. The

court heard the testimony of the plaintiff’s attorney,
Norman A. Roberts II, who was questioned extensively

regarding his fee affidavit as well as the attached,

detailed invoices for his firm’s services. Roberts

claimed that his reasonable fees for the services rendered as a result of the defendant’s bad faith claims on

appeal amounted to $61,625.90. Included in that total

were fees for services rendered by two associate attorneys and a paralegal employed by the firm. Slightly less

than one half of the total fees were for services rendered

directly by Roberts, who asserted in the fee affidavit

that he rendered 60.3 hours of service at a rate of $500

per hour, resulting in fees of $30,150.13

The defendant’s examination of Roberts and testing

of the fee affidavit were thorough. He questioned

Roberts concerning the propriety of charging for the

services of the paralegal, on the basis that some of

those services could be classified as clerical. He also

highlighted portions of each of the twenty attached

individual invoices, probing the necessity of the time

spent on various tasks. For example, with respect to

the invoice dated May 31, 2013, the defendant questioned the need to charge for two attorneys, Roberts

and an associate, to attend a preargument conference,

resulting in a bill for more than ten hours of time. The

defendant further questioned Roberts concerning the

charges for services rendered in connection with the

plaintiff’s attempt to recover attorney’s fees from the

defendant.

The defendant focused particular attention on two

issues in his questioning of Roberts. First, he challenged

the propriety of the plaintiff’s recovering attorney’s fees

from him for the appeal on the basis that the Appellate

Court granted the defendant’s motion to strike the portions of the plaintiff’s appellate brief that referenced

and relied on the October 30, 2013 hearing. In closing

argument to the trial court, the defendant contended

that, because the Appellate Court rendered judgment

in favor of the plaintiff on the basis of theories other

than those advanced by Roberts, and because the court

granted the defendant’s motion to strike portions of

the plaintiff’s brief, Roberts did not actually ‘‘win’’ the

appeal for the plaintiff. Accordingly, the defendant

argued, he should not be charged for the time that

Roberts spent on the appeal.14

Second, the defendant introduced evidence of the

fees charged by the defendant’s previous appellate

counsel, Paul Greenan, which amounted to $9700. The

trial court admitted that evidence, over the plaintiff’s

objection, on the ground that it was relevant to the

question of the reasonableness of the plaintiff’s fees.

The defendant later asked Roberts why his fees were

six times higher than his counsel’s fees. Roberts

explained that the difference was due, in part, to the

different rates charged: Roberts’ rate is $500 per hour,

whereas the defendant’s counsel charges $200 per hour.
Roberts also testified that the discrepancy was due, in

part, to the conduct of the defendant’s counsel, which

required Roberts to expend more time on the appeal

than he otherwise would have. For example, Roberts

testified that the defendant’s counsel ‘‘would come to

court and have other business and [Roberts] was forced

to stand there and wait while [the defendant’s counsel]

attended [to] other business . . . .’’

During the course of the fee hearing, the trial court

stated its view that it considered the amount that

Roberts sought, approximately $61,000, to be ‘‘way . . .

too much.’’ At one point, the court stated that it ‘‘had

a hard time figuring out’’ how it was possible to justify

that amount of fees in connection with the present case.

Ultimately, the court awarded the plaintiff approximately one half of what Roberts had claimed, $30,000.

Although the court did not specify the particular facts

on which it relied, it is evident from the record that, in

awarding the plaintiff less than one half of the fees

requested, the court considered Roberts’ detailed testimony regarding the fee affidavit, the fee affidavit itself,

the relative rates charged by Greenan and Roberts, and

the challenges raised by the defendant regarding certain

charges. A reasonable reading of the transcripts and

the fee affidavit supports the conclusion that the trial

court discounted all but the fees for the services rendered directly by Roberts himself. On the basis of the

foregoing, we conclude that the trial court acted within

its discretion in awarding the plaintiff $30,000 in attorney’s fees.

The judgment of the Appellate Court is reversed and

the case is remanded to that court with direction to

affirm the trial court’s award of attorney’s fees.

In this opinion the other justices concurred.

1 This court granted the plaintiff’s petition for certification to appeal,

limited to the following issue: ‘‘Did the Appellate Court properly apply the

abuse of discretion standard of review in holding that the trial court’s

memorandum of decision lacked ‘factual findings with a high degree of

specificity’ when the trial court found that the defendant’s claims on appeal

lacked any indicia of color?’’ Lederle v. Spivey, 327 Conn. 954, 171 A.3d

1050 (2017).

2 Pursuant to the American rule, ‘‘except as provided by statute or in

certain defined exceptional circumstances, the prevailing litigant is ordinarily not entitled to collect a reasonable [attorney’s] fee from the loser.’’

(Internal quotation marks omitted.) CFM of Connecticut, Inc. v. Chowdhury,

239 Conn. 375, 393, 685 A.2d 1108 (1996), overruled in part on other grounds

by State v. Salmon, 250 Conn. 147, 155, 735 A.2d 333 (1999).

3 Although the defendant’s claim is outside the scope of the certified issue,

the plaintiff has had the opportunity to brief that issue. Therefore, in the

interests of judicial economy, we address the defendant’s claim. We observe,

however, that, even if we agreed with the defendant that the trial court

abused its discretion in setting the amount of the award, that conclusion

would not serve as an alternative ground to affirm the judgment of the

Appellate Court, which held that the trial court had abused its discretion

in awarding attorney’s fees at all. Our decision in the present case concludes

that the trial court did not abuse its discretion in determining that attorney’s

fees were warranted under the bad faith exception. The Appellate Court

did not reach the issue of whether the trial court had abused its discretion

as to the amount of the award.

4

In his brief to this court, the defendant asserts that he raised a third
claim on appeal in Lederle II, contending that, because ‘‘a decision on the

motion to [open] was made behind closed doors and without a court reporter,

the court effectively sealed the hearing from the public in violation of the

public’s right to access.’’ Rather than a separate claim, the defendant identifies an additional theory in support of his claim that the court improperly

held a portion of the hearing in chambers and off the record.

5

In his brief to this court, the defendant takes issue with the conclusion

of the Appellate Court that the plaintiff had no continuing duty to disclose

the loss of her Lexmark employment. That issue, however, is not within

the scope of the certified question and, therefore, is not before us in the

present appeal.

We further note that we find unpersuasive the defendant’s argument

that, because the Appellate Court sua sponte concluded that there was no

continuing duty to disclose, his claim on appeal that the trial court improperly

decided the motion to open without taking evidence was a colorable claim.

The fact that the Appellate Court resolved the case on a different ground

has no bearing on the merits—or the complete lack thereof—of the claim

that the defendant raised before that court.

6 The court in that decision also granted the plaintiff’s motion for termination of the stay of proceedings, which she had filed in January, 2015.

7 We find unpersuasive the defendant’s contention that, because the trial

court also found that the defendant’s attorney was aware of the complete

lack of any merit to both of the defendant’s appellate claims, the trial court

failed to make the requisite finding as to the defendant. The mere fact that

the trial court made the additional, irrelevant finding that the defendant’s

attorney was aware that the defendant’s appellate claims were completely

lacking in color has no bearing on the fact that the trial court also found

that the defendant knew that his claims lacked any indicia of color.

8 Although we have stated that the findings must have a high degree of

specificity; Berzins v. Berzins, supra, 306 Conn. 662; we have never stated

that the trial court must separately indicate which factual findings relate

to which prong, colorability or bad faith, and we reject that proposition.

Frequently, the subordinate factual findings that support bad faith will also

provide support for lack of colorability. Rather than requiring a rigid structure in the trial court’s analysis, we merely examine the court’s findings to

determine whether they are sufficiently specific to support the conclusion

that the court did not abuse its discretion in arriving at its ultimate findings

of bad faith and lack of colorability.

9 We note that the 2007 decision could reasonably be read to suggest that

the plaintiff’s employment with Lexmark was material to the court’s decision

granting relocation. Because the defendant, however, did not challenge the

trial court’s legal conclusion to the contrary, we need not consider whether

the trial court’s interpretation of the 2007 decision was correct.

10 As an alternative ground for affirmance, the defendant contends that

there was a colorable basis for the two claims that he raised on appeal in

Lederle I. As we have discussed, the trial court’s subordinate findings are

sufficiently specific to support the court’s ultimate determination that both

of his claims were entirely lacking in color. Accordingly, we need not address

the defendant’s alternative ground for affirmance. We note, however, that

our review of the record confirms the trial court’s determination that neither

of the defendant’s appellate claims had any indicia of color.

11 As we already have stated in this opinion, the trial court predicated its

ultimate finding as to the defendant’s appellate claim that the court improperly decided the motion to open without hearing evidence on two, independent bases: the parties’ agreement to the bifurcated proceeding and an

alleged stipulation of facts entered into by the parties in lieu of an evidentiary

hearing. Our conclusion that the trial court’s finding that the parties agreed

to the bifurcated proceeding—which resulted in the motion to open being

resolved under the purely legal question—renders it unnecessary for us to

consider the alternative ground for affirmance relied on by the defendant,

namely, that the trial court’s second subordinate finding in support of its

ultimate finding of lack of colorability—that the parties entered into a stipulation of facts—was clearly erroneous.

We observe, however, that our review of the October 24, 2012 transcript

suggests, to the contrary, that there was no agreement between the parties in

court that they would proceed by way of stipulation in lieu of an evidentiary

hearing. Although it was later suggested that the parties had exchanged

e-mails in which they agreed that their statements of facts in their briefs

would serve as a joint stipulation of facts for purposes of the motion to

open, there is no mention during the October 24, 2012 hearing of any stipula-
tion entered into by the parties. In fact, the transcript of the October 24,

2012 hearing suggests that, if the trial court had concluded that the plaintiff’s

employment with Lexmark was material to the 2007 decision granting her

permission to relocate, the court would have proceeded to an evidentiary

hearing. The court expressly stated that expectation to the parties, and

neither party contradicted the court. Moreover, during the course of the

hearing, the parties identified various issues that remained contested, including credibility issues, the date when the plaintiff learned that she no longer

had a job with Lexmark, and whether she had left that position voluntarily.

Because, however, it is clear from the record that the parties agreed to the

bifurcated proceeding, it is immaterial that the record does not support the

court’s finding that the parties entered into a stipulation of facts.

12 We reject the defendant’s suggestion that we should not accord deference to the trial court’s decision because the fees incurred were in connection with proceedings before the Appellate Court. The applicable standard

of review is deferential because the trial court has heard the testimony and

received evidence regarding the reasonableness of the fees and, accordingly,

is in the best position to evaluate the evidence and to make the necessary

factual findings. The fact that the proceedings giving rise to the claim for

attorney’s fees took place on appeal does not change the standard of review.

13 Our review of the invoices reveals a slight error in the calculation of

Roberts’ total hours. The invoices show that he devoted a total of 59.5 hours

as a result of the defendant’s appellate claims.

14 The defendant claims that the clean hands doctrine bars recovery on

this basis. That argument is without merit.