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*********************************************** 
PETER J. FRANCINI, TRUSTEE, ET AL. v.

NICHOLAS A. RIGGIONE

(AC 41528)

DiPentima C. J., and Keller and Olear, Js.

Syllabus

The plaintiffs, trustees of a certain trust, sought to recover damages from

the defendant for, inter alia, breach of contract. The plaintiff F had

purchased an undeveloped lot from the defendant in the town of Milford

with views of Long Island Sound, Charles Island, and Milford Harbor.

At closing, the parties entered into an agreement pursuant to which the

defendant was to maintain certain height restrictions on his property,

regrade certain topsoil and trim certain tree limbs. After attempts to

resolve disputes related to the topsoil and tree limbs had failed, the

plaintiffs commenced this action. Following a trial, the court rendered

judgment in favor of the plaintiffs with respect to their breach of contract

claims and awarded them $4100 in damages, but it denied their request

for injunctive and equitable relief with respect to their claim of private

nuisance, and determined that the plaintiffs’ two principal claims for

injunctive relief regarding the tree limbs and the pile of topsoil had

become moot because the defendant trimmed the relevant limbs and

leveled the topsoil so that it no longer obstructed F’s view. Subsequently,

the court held an evidentiary hearing concerning a motion for attorney’s

fees filed by the plaintiffs in accordance with a provision of the parties’

contract, which provided that the prevailing party in litigation enforcing

the agreement would be entitled to recover reasonable attorney’s fees

and court costs. The trial court awarded the plaintiffs $93,405 in attorney’s fees and costs and determined that the plaintiffs were the prevailing

party under the contract. On the defendant’s appeal to this court, held:

1. The trial court did not abuse its discretion by not discounting the award

of attorney’s fees on account of the small sum awarded to the plaintiffs

for the breach of contract claim; although the defendant claimed that

a proper analysis of the factors listed in rule 1.5 (a) of the Rules of

Professional Conduct would compel a significant downward departure

from the plaintiffs’ initial lodestar calculation, which is the initial estimate of a reasonable attorney’s fee calculated by multiplying the number

of hours expended on litigation times a reasonable hourly rate, because

the damages awarded were insignificant in relation to the court’s award

of attorney’s fees, the plaintiffs had a legitimate claim for attorney’s

fees pursuant to the contract, and the fact that the defendant rendered

the plaintiffs’ claims for injunctive relief under the breach of contract

claims moot by performing as required under the contract well into the

trial did not obviate the plaintiffs’ legitimate claim for attorney’s fees

pursuant to the contract.

2. The trial court abused its discretion in awarding attorney’s fees with

respect to the plaintiff’s private nuisance claim on which the plaintiffs did

not prevail; although a party may recover attorney’s fees for unsuccessful

claims that are inextricably intertwined and involve a common basis in

fact or legal theory with the successful claims, the private nuisance and

breach of contract claims in the present case were factually and legally

distinct, and were not inextricably intertwined or based on a common

legal theory.

Argued April 15—officially released October 1, 2019

Procedural History

Action to recover damages for, inter alia, breach of

contract, and for other relief, brought to the Superior

Court in the judicial district of Ansonia-Milford, where

the defendant filed a counterclaim; thereafter, the matter was tried to the court, Hon. John W. Moran, judge

trial referee; judgment in part for the plaintiffs on the

complaint and in part for the defendant on the counter-
claim; subsequently, the court granted the motion for

attorney’s fees filed by the plaintiffs, and the defendant

appealed to this court. Reversed in part; further proceedings.

Sean M. Dunne, for the appellant (defendant).

Charles J. Willinger, Jr., with whom, on the brief,

were Ann Marie Willinger and James A. Lenes, for the

appellees (plaintiffs).
Opinion

KELLER, J. This appeal arises from a breach of contract and private nuisance action brought by the plaintiffs, Peter J. Francini, Trustee, and Donald W. Anderson, Trustee, on behalf of the Peter J. Francini 1992

Revocable Family Trust,1 against the defendant, Nicholas A. Riggione. After a five day trial to the court, the

court rendered judgment in favor of the plaintiffs on

their breach of contract claims, but denied their request

for injunctive and equitable relief on their private nuisance claim. The defendant appeals from the court’s

subsequent award, after determining that the plaintiffs

were the prevailing party, of approximately $90,000 in

attorney’s fees.2 On appeal, the defendant essentially

claims that the court abused its discretion in calculating

the award of attorney’s fees (1) because in awarding

fees to the plaintiffs on their claims related to a breach

of contract between the parties, a proper analysis of the

factors listed in rule 1.5 (a) of the Rules of Professional

Conduct3 would compel a significant downward departure from the plaintiffs’ initial lodestar calculation; and

(2) when it awarded fees for a private nuisance claim

on which the plaintiffs did not prevail.4 We agree with

the defendant that the court abused its discretion in

awarding attorney’s fees for a claim on which the plaintiffs did not prevail. Accordingly, we reverse the judgment of the trial court in part and remand the case for

further proceedings consistent with this opinion.

The record reveals the following relevant facts, found

by the trial court or otherwise undisputed, and procedural history. The defendant was the owner of a three

lot subdivision on Gulf Street, which abuts Milford Harbor and Long Island Sound, in the city of Milford. In

2012, the defendant agreed to sell one of the undeveloped lots (lot 3) for approximately $800,000 to Francini

so that he could build a home with views of Long Island

Sound, Charles Island, and the Milford Harbor. The

initial closing date was set for July 18, 2012. The parties

failed to close by the July closing date, and, thereafter,

their attorneys drew up a second, more comprehensive

agreement with a new closing date of September 14,

2012 (lawyers’ contract). The parties subsequently

failed to close in September, 2012.5

In March, 2014, approximately eighteen months after

the second closing date, the defendant conveyed title to

Francini. At the March, 2014 closing, the parties entered

into a final agreement (postclosing agreement),6 and

memorialized the defendant’s remaining obligations relevant to lot 3. Among other things, the contract provided

that the defendant was to maintain certain height

restrictions on his property (lot 2), level and regrade

whatever topsoil remained on lot 2 after the construction of Francini’s home, and trim certain limbs of a

large tree located on lot 2 that obscured Fancini’s view

of Long Island Sound and Charles Island.
On September 22, 2015, after subsequent attempts to

resolve disputes related to the topsoil and tree limbs

had failed, the plaintiffs commenced the present action.

In the operative complaint, the plaintiffs sought money

damages and equitable and injunctive relief for claims

sounding in breach of contract and private nuisance.

The plaintiffs alleged that, among other things, the

defendant had breached the parties’ contract by refusing to trim certain limbs from the tree and refusing to

level the topsoil pile on lot 2, which, at its peak, reached

a height of approximately thirteen feet and significantly

obscured Francini’s view of Long Island Sound. In their

prayer for relief, the plaintiffs’ primary request was that

the court provide them with a mandatory injunction

requiring the defendant to ‘‘prune the lower limbs’’ of

the tree and ‘‘remove or grade’’ the topsoil in order to

restore lot 2 to its ‘‘natural topography.’’7 The defendant

filed a counterclaim seeking damages for Francini’s

‘‘[removal of] excess subsurface gravel and top soil

material from [lot 3],’’ and his subsequent failure to

stockpile said materials on lot 2.

After a five day trial, the court found in favor of the

plaintiffs with respect to their breach of contract claims

and awarded them $4100 in damages.8 The court, however, denied the plaintiffs’ request for injunctive and

equitable relief with respect to their claim of private

nuisance because the relief requested in their posttrial

brief under this claim was not sufficiently pleaded in

the operative complaint, and, thus, the defendant was

not given adequate notice as to the specific relief being

sought.9 The court further concluded that the plaintiffs’

two principal claims for injunctive relief regarding the

tree limbs and the pile of topsoil had become moot

after the fourth day of trial because the defendant

trimmed the relevant limbs and leveled the topsoil so

that they were no longer obscuring Francini’s view.

Thereafter, the court held an evidentiary hearing over

the course of two days on the plaintiffs’ timely motion

for attorney’s fees.10 In its memorandum of decision on

attorney’s fees, the court determined that, even though

the plaintiffs did not prevail on their nuisance claim,

and that their principal claims for injunctive relief under

their breach of contract claims were moot, the plaintiffs

were the prevailing party, and that an award of fees

was warranted pursuant to paragraph twenty-nine of

the lawyers’ contract, which provided in relevant part:

‘‘[I]n the event of any litigation brought to enforce any

material provision of this Agreement, the prevailing

party shall be entitled to recover its reasonable [attorney’s] fees and court costs from the other party.’’ The

court further concluded that no downward departure

from the initial lodestar calculation was warranted and,

thereafter, awarded the plaintiffs $93,405 in attorney’s

fees and costs. This appeal followed. Additional facts

and procedural history will be set forth as necessary.
I

The defendant claims that the court abused its discretion in its award for attorney’s fees. In his view, had

the court properly analyzed all of the factors in rule 1.5

(a) of the Rules of Professional Conduct,11 a significant

downward adjustment from the plaintiffs’ initial lodestar calculation12 would be warranted. Specifically, the

defendant argues that the court must have ignored the

fourth factor, which provides that a court should consider ‘‘[t]he amount involved and the results obtained,’’

because if the court had considered it, it would have

reduced the award accordingly.13 We find the defendant’s argument unpersuasive.

The following additional facts are relevant to the

defendant’s claim. After the court concluded that the

plaintiffs were the prevailing party, the defendant

argued in his opposition to the plaintiffs’ motion for

attorney’s fees, as he does on appeal, that the case did

not involve novel or difficult questions of law and that

the breach of contract damages awarded were insignificant in relation to the court’s award for attorney’s fees,

and, therefore, a downward departure from the initial

lodestar calculation was warranted. The defendant further argued that the entire litigation was unnecessary

because the material facts were not in dispute and the

plaintiffs’ claims for injunctive relief were moot.

In response, the plaintiffs countered that, ‘‘[only] after

the filing of this lawsuit and after the initial close of

evidence in this case, and after the expenditure of [a]

significant amount of money on attorney’s fees by the

[plaintiffs, did] the defendant remove the offensive tree

limbs and . . . topsoil pile. . . . The fact of the matter

is that the need for injunctive relief and specific performance concerning these issues was rendered moot,

only after substantial litigation of the issues, when the

defendant ultimately complied with his contractual

responsibilities.’’ The plaintiffs further argued that,

‘‘while the amount of monetary damages involved in

the [plaintiffs’] complaint was minimal, the overriding

focus of the case from day one was to return to

[Francini] his million dollar view of Long Island Sound,

a goal that was accomplished solely through the institution of the lawsuit.’’

After the two day evidentiary hearing on the plaintiffs’

motion, the court issued its memorandum of decision,

concluding that after ‘‘carefully review[ing] the factors

outlined in [both] § 1.5 (a) of the Rules of Professional

Conduct and . . . Johnson v. Georgia Highway

Express, Inc., [488 F.2d 714, 717–19 (5th Cir. 1974)],’’

the award of attorney’s fees to the plaintiffs was warranted. In addressing the defendant’s claim that the

case did not present a novel or difficult question of

law, the court noted that ‘‘the law on each . . . [count]

individually may not be sophisticated, but taken
together as intertwined with the facts [of this case], the

law borders on . . . complicated.’’ With respect to the

defendant’s argument that litigating the issue of injunctive relief was unnecessary because the issues were

ultimately moot, the court also identified that ‘‘[the

defendant’s] suggestion [that the fees were unnecessary

because the issues became moot] lacks merit. The initial

thrust and purpose of this lawsuit was to have the

topsoil on lot 2 leveled. The trial commenced prior to,

and was well underway, when [the defendant ultimately] leveled the topsoil and pruned the tree adjacent

to Milford Harbor.’’14

We next turn to the applicable legal principles that

govern the disposition of the defendant’s claim. ‘‘An

award of attorney’s fees is not a matter of right. Whether

any award is to be made and the amount thereof lie

within the discretion of the trial court, which is in the

best position to evaluate the particular circumstances

of a case. . . . A court has few duties of a more delicate

nature than that of fixing counsel fees. The issue grows

even more delicate on appeal; we may not alter an

award of attorney’s fees unless the trial court has clearly

abused its discretion, for the trial court is in the best

position to evaluate the circumstances of each case.

. . . Because the trial court is in the best position to

evaluate the circumstances of each case, we will not

substitute our opinion concerning counsel fees or alter

an award of attorney’s fees unless the trial court has

clearly abused its discretion. . . .

‘‘With respect to the relevant legal principles, we have

often explained that Connecticut adheres to the American rule regarding attorney’s fees. . . . Under the

American rule, in the absence of statutory or contractual authority to the contrary, a successful party is not

entitled to recover attorney’s fees or other ordinary

expenses and burdens of litigation . . . . There are

few exceptions. For example, a specific contractual

term may provide for the recovery of attorney’s fees

and costs . . . .’’ (Citations omitted; emphasis omitted;

internal quotation marks omitted.) WiFiLand, LLP v.

Hudson, 153 Conn. App. 87, 101–102, 100 A.3d 450

(2014).

Here, paragraph twenty-nine of the lawyers’ contract

provides a specific contractual term for the recovery

of attorney’s fees. It provides in relevant part: ‘‘[I]n the

event of any litigation brought to enforce any material

provision of this Agreement, the prevailing party shall

be entitled to recover its reasonable [attorney’s] fees

and court costs from the other party.’’

‘‘If a contractual provision allows for reasonable

attorney’s fees, [t]here are several general factors which

may properly be considered in determining the amount

to be allowed as reasonable compensation to an attorney. These factors are summarized in [rule 1.5 (a) of

the Rules of Professional Conduct].’’ (Internal quotation
marks omitted). Id., 102–103. ‘‘[T]he commentary to rule

1.5 provides that the factors specified in the rule . . .

are not exclusive’’ and not all may be relevant given a

particular instance. Id. 103. ‘‘[As] [w]e have explained

[previously,] courts . . . may rely on their general

knowledge of what has occurred at the proceedings

before them to supply evidence in support of an award

of attorney’s fees.’’ (Internal quotation marks omitted.)

Id. For additional guidance in adjusting attorney’s fees,

Connecticut courts have adopted the twelve factors set

forth in Johnson v. Georgia Highway Express, Inc.,

supra, 488 F.2d 717–19.15 See Steiger v. J. S. Builders,

Inc., 39 Conn. App. 32, 37-39, 663 A.2d 432 (1995) (adopting Johnson factors).

The gravamen of the defendant’s argument in his

opposition to the plaintiffs’ motion for attorney’s fees,

which is nearly identical to his claim now on appeal,

was that the court’s award for attorney’s fees far outpaced the small sum awarded to the plaintiffs for breach

of contract damages, and when considered in light of

the fact that the plaintiffs’ claim for injunctive relief

due to breach of contract was rendered moot, the

court’s award of attorney’s fees reflected an abuse of

discretion. The defendant’s argument focuses on one

factor, namely, ‘‘the amount involved and the results

obtained.’’ He claims that a proper analysis of this factor, under the present circumstances, would compel a

significant downward departure from the initial lodestar calculation, because the award for breach of contract damages was de minimis compared to the court’s

award for attorney’s fees. He further argues that the

present case is distinguishable from a typical case

where attorney’s fees might far outpace actual damages,

such as in a case where a plaintiff acts as a private

attorney general vindicating some public right. We are

not persuaded.

In the context of the present case, it would appear

that the defendant wants us to interpret this factor, in

particular, the words ‘‘results obtained,’’ as functionally

equivalent to ‘‘court awarded contract damages.’’ To

adopt this view would thus imply that the plaintiffs’

costs associated with seeking injunctive relief for

breach of contract, due to the unquantifiable character

of that relief, would be unrecoverable, despite paragraph twenty-nine of the lawyers’ contract. We decline

to adopt such a narrow view. Critically, as the defendant

concedes, the principal claim in the underlying action

was not for contract damages, but rather it was to

compel his specific performance with respect to removing certain view-obscuring objects on lot 2. Thus, the

result obtained was precisely the result sought. See

Conservation Commission v. Red 11, LLC, 135 Conn.

App. 765, 786-88, 43 A.3d 244 (2012) (no abuse of discretion when court awarded approximately $390,000 in

attorney’s fees to party exclusively seeking injunctive

relief).
Furthermore, regardless of whether the defendant’s

ultimate performance was court ordered or done by

his own volition, the fact remains that the defendant,

despite his contractual obligations, removed the viewobscuring impediments only after significant litigation.16 The fact that the defendant rendered the plaintiffs’ claims for injunctive relief under the breach of

contract claims moot by performing as required under

the contract well into trial does not obviate the plaintiffs’ legitimate claim for attorney’s fees pursuant to the

contract. On the basis of our review of the record, we

do not conclude that the court abused its discretion by

not discounting the award of attorney’s fees on account

of the small sum awarded to the plaintiffs for the breach

of contract claims. Accordingly, the defendant’s first

claim fails.

II

The defendant further claims that the court abused

its discretion by awarding fees for work performed on

the plaintiffs’ private nuisance claim, on which they did

not prevail.17 Specifically, the defendant contends that

because the plaintiffs did not prevail on their private

nuisance claim, the court’s failure to modify the award

accordingly was an abuse of discretion.18 In response,

the plaintiffs contend that, because both sets of claims

‘‘arose from a single set of underlying facts, [i.e.] the

failure of the defendant to perform in accordance with

the [contract],’’ the failure of their nuisance claim is

not fatal to the court’s award of the full lodestar calculation. We agree with the defendant that because the

plaintiffs did not prevail on their private nuisance claim,

the court should have excluded fees related to the preparation and presentation of that claim from the award.

The following additional facts are relevant to the

defendant’s claim. In the amended complaint, the plaintiffs alleged that the defendant’s property had ‘‘been

cited by the city of Milford Health Department for health

code violations and is in an extreme state of disrepair;

the house located on the property has boarded up windows, debris, deteriorating and compromised porches,

peeling clapboards, and is host to a number of pigeons,

rodents and other opportunistic animals.’’ This disrepair has thus ‘‘interfered with [Francini’s] use and an

enjoyment of the [property].’’ In the prayer for relief,

the plaintiffs requested, without specific reference to

the private nuisance claim, that the court grant ‘‘such

other relief within equity and law appertain.’’

At trial, the court heard testimony from both parties

relating to the dilapidated structure located on lot 2.

Both parties testified that during their earlier negotiations, the structure on lot 2 was a point of discussion.

According to Francini’s testimony, the defendant

assured him that the structure, although in disrepair,

was undergoing a historical restoration. The plaintiffs
also presented evidence that the property was subsequently the object of a number of complaints from local

residents, who had complained that the structure had

become a refuge for pigeons, rodents and other wild

animals. In response, the defendant produced evidence

demonstrating that after he sold lot 3, his incremental

progress on the lot 2 structure, despite his best efforts,

was the result of the administrative and financial burdens that accompanied restoring the structure to its

historic specifications. The court also heard testimony

that, although the structure was an issue for Francini

when considering whether to purchase lot 3, the contract never reflected any obligations on the part of the

defendant as to the condition or continued renovation

of the structure on lot 2.

Nevertheless, in the plaintiffs’ posttrial brief they

argued: ‘‘In light of the defendant’s promises to

[Francini], it would be unreasonable to allow the defendant to continue his renovations on the . . . premises

at a glacial pace. The dilapidated condition of the . . .

premises has been a constant cause of damage and

annoyance to the plaintiffs. At a minimum, the defendant should be ordered to complete the installation of

a new roof, windows, and exterior siding on the . . .

premises in accordance with applicable building codes,

within ninety days of the court’s ruling.’’

In its memorandum of decision, the court concluded

that ‘‘[n]owhere in the complaint does Francini allege

facts regarding a new roof, windows, and siding on the

defendant’s house that would infer that he is seeking

equitable relief regarding completion of a new roof,

windows and exterior siding on the premises . . . .

Further, Francini does not claim injunctive relief

regarding repairing the residence . . . in his prayer for

relief. Francini’s prayer for relief contains the timeworn

phrase ‘[s]uch other relief within which equity and law

appertain.’ . . . The defendant could not possibly be

put on notice that Francini is seeking relief regarding

the completion of the exterior of the residence on lot

2. Based on the foregoing, the court declines to order

injunctive relief regarding the completion of the residence on [the defendant’s property].’’ (Footnote

omitted.)

Thereafter, in the defendant’s opposition to the plaintiffs’ motion for attorney’s fees, he argued that because

the plaintiffs were unsuccessful on this claim, the court

should reduce the award accordingly. The court, however, concluded that ‘‘[t]hese issues were intertwined

with the other issues presented in the trial . . . and

the court cannot separate and cull out the precise time

and effort spent on these specific issues.’’ On appeal,

the defendant makes essentially the same argument

that he made in opposition to the plaintiffs’ motion for

attorney’s fees.

This court has reasoned that a party may recover
attorney’s fees for unsuccessful claims, but those claims

must be inextricably intertwined and involve a common

basis in fact or legal theory with the successful claims.

See Conservation Commission v. Red 11, LLC, supra,

135 Conn. App. 787 n.16; see also Perez v. D & L Tractor

Trailer School, 117 Conn. App. 680, 704 n.19, 981 A.2d

497 (2009), (citing approvingly to Chopra v. General

Electric Co., 527 F. Supp. 2d 230, 251–52 [D. Conn.

2007], which held that ‘‘[i]n order to recover on the

entire fee incurred on both successful and unsuccessful

causes of action, the claims must be ‘inextricably intertwined’ and involve a common basis in fact or legal

theory’’), cert. denied, 294 Conn. 923, 985 A.2d 1062

(2010). In the present case, we do not agree with the

court’s conclusion that the facts relating to both the

breach of contract and private nuisance claims were

inextricably intertwined or based on a common legal

theory.19 The plaintiffs’ private nuisance claim was factually and legally distinct from their breach of contract

claims. Because the plaintiffs were not successful on

their private nuisance claim, we conclude that the court

abused its discretion by not reducing the plaintiffs’

award for attorney’s fees accordingly.

The judgment is reversed in part and the case is

remanded for further proceedings consistent with

this opinion.

In this opinion the other judges concurred.

1 For ease of discussion we refer to Francini and Anderson collectively

as the plaintiffs and individually by name where necessary.

2 The defendant does not dispute the court’s determination that attorney’s

fees should be awarded to the plaintiffs. The defendant also does not dispute

the costs awarded to the plaintiffs.

3 Rule 1.5 (a) of the Rules of Professional Conduct provides in relevant

part: ‘‘The factors to be considered in determining the reasonableness of a

fee include the following: (1) The time and labor required, the novelty and

difficulty of the questions involved, and the skill requisite to perform the

legal service properly; (2) The likelihood, if made known to the client, that the

acceptance of the particular employment will preclude other employment

by the lawyer; (3) The fee customarily charged in the locality for similar

legal services; (4) The amount involved and the results obtained; (5) The

time limitations imposed by the client or by the circumstances; (6) The

nature and length of the professional relationship with the client; (7) The

experience, reputation, and ability of the lawyer or lawyers performing the

services; and (8) Whether the fee is fixed or contingent.’’

4

In his principal appellate brief, the defendant asserts five separate claims

of error. For ease of discussion, we address certain claims together and in

a different order than they appear in the defendant’s appellate brief.

The balance of the defendant’s claims posit that the court abused its

discretion by awarding attorney’s fees that were (1) duplicative, and (2)

unnecessarily incurred because most issues litigated were not materially in

dispute. With respect to duplicative fees, the defendant argues that two trial

attorneys were not necessary given that this was a garden variety breach

of contract case. The defendant, however, concedes in his appellate brief

that the trial court was correct when it stated that, ‘‘the [plaintiffs were]

free to prosecute [their] case in whatever manner that [they saw] fit.’’ We

agree both with the court’s observation and its subsequent determination

that it was reasonable to award fees for both attorneys because the case was

sufficiently complex due to the amount of contested facts and abundance

of exhibits.

With respect to fees unnecessarily incurred in litigation, the defendant’s

primary claim is that the main issues of the case, as a practical matter, were

not in dispute. After a careful review of the record, we conclude that the

defendant’s claim is simply belied by the record and that a number of
material issues remained unresolved prior to the commencement of trial.

5 Thereafter, Francini brought an action against the defendant for specific

performance pursuant to the lawyers’ contract, which was settled.

6 The trial court found that the lawyers’ contract was amended by the

postclosing agreement and that the two documents formed an integrated

contract. We therefore refer to both documents as the contract.

7 The plaintiffs’ prayer for relief also sought money damages for breach

of contract. Specifically, they sought damages for the defendant’s failure to

install curb cuts, a driveway apron, and frontage landscaping on the plaintiffs’

lot pursuant to the contract. The court subsequently awarded the plaintiffs

damages for the defendant’s failure to install the driveway apron, curb cuts

and to plant two trees per the contract.

8 The court also determined that the defendant prevailed on his counterclaim and awarded him $192 in damages, thereby reducing the plaintiffs’

award from $4100 to $3908.

9 See Solomon v. Hall-Brooke Foundation, Inc., 30 Conn. App. 129, 133–34,

619 A.2d 863 (1993) (‘‘When prosecuting a civil matter, the general rule is

that a prayer for relief must articulate with specificity the form of relief

that is sought. . . . A party who fails to comply with this rule runs the risk

of being denied recovery.’’ [Internal quotation marks omitted.]).

10 During the hearing the parties provided testimony, affidavits, time

sheets, an engagement letter, and e-mails in support of their respective

claims. The defendant does not dispute that the fee, which was based on

an hourly fee agreement, was customary for similar legal services in the area.

11 See footnote 3 of this opinion.

12 ‘‘[A lodestar calculation is] [t]he initial estimate of a reasonable attorney’s fee [which] is properly calculated by multiplying the number of hours

reasonably expended on the litigation times a reasonable hourly rate.’’ (Internal quotation marks omitted.) Ernst v. Deere & Co., 92 Conn. App. 572, 576,

886 A.2d 845 (2005).

13 We note that the defendant did not file a motion to reargue the court’s

award of attorney’s fees nor did he seek an articulation from the trial court

with respect to its treatment of the factors in rule 1.5 (a) of the Rules of

Professional Conduct. Despite the defendant’s claim at oral argument before

this court that filing a motion for articulation was not warranted, it is the

appellant’s responsibility to ensure that the record is adequate for review.

See Practice Book § 61-10; Commission on Human Rights & Opportunities

v. Brookstone Court, LLC, 107 Conn. App. 340, 352, 945 A.2d 548, cert.

denied, 288 Conn. 907, 953 A.2d 651, cert. denied, 288 Conn. 907, 953 A.2d

651 (2008); see also Perez v. D & L Tractor Trailer School, 117 Conn. App.

680, 707, 981 A.2d 497 (2009) (‘‘we read an ambiguous trial record to support,

rather than to undermine, the judgment’’ [internal quotation marks omitted]),

cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010).

14 In its memorandum of decision, the court further stated that it considered the nature of the litigation, the procedural history of the case, the

hourly rates charged by the plaintiffs’ counsel, the number of hours billed,

the nature of the billing, as well as the results obtained. The defendant

does not claim error with respect to the court’s consideration of these

other factors.

15 ‘‘The Johnson factors are (1) the time and labor required, (2) the novelty

and difficulty of the questions, (3) the skill requisite to perform the legal

service properly, (4) the preclusion of other employment by the attorney

due to acceptance of the case, (5) the customary fee for similar work in

the community, (6) whether the fee is fixed or contingent, (7) time limitations

imposed by the client or the circumstances, (8) the amount involved and

the results obtained, (9) the experience, reputation and ability of the attorneys, (10) the undesirability of the case, (11) the nature and length of the

professional relationship with the client and (12) awards in similar cases.’’

Ernst v. Deere & Co., 92 Conn. App. 572, 576, 886 A.2d 845 (2005).

16 See footnote 5 of this opinion.

17 ‘‘[P]rivate nuisance . . . is a nontrespassory invasion of another’s interest in the private use and enjoyment of land. . . . The law of private nuisance springs from the general principle that [i]t is the duty of every person to

make a reasonable use of his own property so as to occasion no unnecessary

damage or annoyance to his neighbor. . . . The essence of a private nuisance is an interference with the use and enjoyment of land. . . . [I]n order

to recover damages in a common-law private nuisance cause of action, a

plaintiff must show that the defendant’s conduct was the proximate cause

of an unreasonable interference with the plaintiff’s use and enjoyment of

his or her property. The interference may be either intentional . . . or the
result of the defendant’s negligence.’’ (Citation omitted; internal quotation

marks omitted.) Rickel v. Komaromi, 144 Conn. App. 775, 782–83, 73 A.3d

851 (2013).

18 The defendant also claims that the court abused its discretion by awarding fees not associated with the underlying litigation. Specifically, the defendant claims that this was a breach of contract case and, therefore, any work

related to issues involving the Planning and Zoning Commission of the City

of Milford or the Milford Health Department should not have been included

in the court’s award. In the alternative, the defendant contends that, to the

extent that those fees related to the plaintiffs’ private nuisance claim, they

should have not been awarded to them because they did not prevail on that

claim. We disagree with the defendant’s view that this work was unrelated

to the underlying litigation, but we agree with the defendant that, to the

extent that these fees were associated with the plaintiffs’ unsuccessful and

factually distinct private nuisance claim, they were improper.

19 For example, the defendant claims that the affidavit submitted in support

of the plaintiffs’ request for attorney’s fees referenced $3362 billed for work

performing investigations and/or research at the Planning and Zoning Commission of the City of Milford and the Milford Health Department, which

was primarily related to the plaintiffs’ private nuisance claim.