Palmieri v. Cirino

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Palmieri v. Cirino

PATRICK PALMIERI ET AL. v. FRANK CIRINO
(AC 46333)
Bright, C. J., and Westbrook and DiPentima, Js.

Syllabus

The plaintiff, who commenced this action seeking, inter alia, to quiet title
to certain real property in New Haven, appealed to this court from the
judgment of the trial court awarding attorney’s fees to the defendant,
following a default judgment rendered against the plaintiff on the defen-
dant’s counterclaim. Held:
1. The plaintiff could not prevail on his claim that the trial court’s award
of attorney’s fees was improper because the affidavit of the defendant’s
counsel in support of attorney’s fees was filed beyond the thirty day
deadline set forth in the applicable rule of practice (§ 11-21) and because
the defendant failed to demonstrate that the untimely filing was the
result of excusable neglect; because Practice Book § 11-21 does not
govern awards of attorney’s fees that constitute an award of punitive
damages and the court stated that it was awarding attorney’s fees as
punitive damages, the defendant was not required to comply with the
deadline in § 11-21 and the court was not required to determine whether
the untimely filing was the result of excusable neglect.
2. The trial court abused its discretion in awarding attorney’s fees for
expenses incurred by the defendant in defending prior actions between
the parties: the amount of attorney’s fees awarded should have been
limited to the fees incurred in the present case; moreover, the court did
not state that the litigation expenses that the defendant had incurred
over the course of the multiple actions between the parties were the
basis for its award of punitive damages, and the defense did not provide
any legal support for this claim; accordingly, the case was remanded
to the trial court to conduct a new hearing on the defendant’s motion
for attorney’s fees.

Argued February 7—officially released July 2, 2024

Procedural History

Action seeking, inter alia, to quiet title to certain real
property, and for other relief, brought to the Superior
Court in the judicial district of New Haven, where the
defendant filed a counterclaim; thereafter, the court,
Robinson, J., granted the defendant’s motion to dismiss
and rendered judgment for the defendant on the com-
plaint; subsequently, the case was tried to the court,
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Palmieri v. Cirino

Robinson, J.; judgment for the defendant on the coun-
terclaim; thereafter, the court, Hon. Jon C. Blue, judge
trial referee, granted the defendant’s motion for attor-
ney’s fees, and the plaintiff appealed to this court.
Reversed; further proceedings.
Stephen R. Bellis, for the appellant (plaintiff).
Patricia A. Cofrancesco, for the appellee (defen-
dant).
Opinion

DiPENTIMA, J. The plaintiff in the underlying quiet
title action, Patrick Palmieri,1 appeals from the judg-
ment of the trial court awarding attorney’s fees to the
defendant, Frank Cirino, following a default judgment
rendered against the plaintiff on the defendant’s coun-
terclaim. On appeal, the plaintiff claims that the court
(1) abused its discretion in issuing the award because
the affidavit in support of attorney’s fees was filed
beyond the thirty day deadline set forth in Practice
Book § 11-21 and (2) improperly awarded attorney’s
fees that were incurred prior to the present action. We
agree with the plaintiff’s second claim and, accordingly,
reverse the judgment of the trial court and remand the
case for a new hearing on the defendant’s motion for
attorney’s fees.
The record reveals the following undisputed facts
and procedural history. The plaintiff owns certain real
property in the city of New Haven that is adjacent to
the defendant’s property. In February, 2015, the plaintiff
initiated the underlying action against the defendant
seeking to quiet title to a beach area and jetty running
1
Palmieri Cove Associates, LLC, also was a named plaintiff, but it was
defaulted for failure to appear on the defendant’s counterclaim and it is not
participating in this appeal. Accordingly, we refer in this opinion to Patrick
Palmieri as the plaintiff and to Palmieri Cove Associates, LLC, by name
when necessary.
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Palmieri v. Cirino

along the shoreline bordering the parties’ properties, a
declaratory judgment for an easement, and monetary
damages for trespass and nuisance.
In his amended answer, the defendant denied the
plaintiff’s claims and asserted two special defenses in
addition to a counterclaim alleging, inter alia, abuse of
process. The defendant subsequently filed a revised
three count counterclaim alleging abuse of process,
negligent infliction of emotional distress and intentional
infliction of emotional distress. The defendant alleged
that the plaintiff and/or Palmieri Cove Associates, LLC,
previously had filed five lawsuits against him—in 2002,
2008, 2009, 2010 and 2012, in addition to the present
action filed in 2015—all relating to disputes over their
adjoining properties.2 The defendant claimed that the
plaintiff and/or Palmieri Cove Associates, LLC, filed
these actions for the improper purpose of trying to
force him out of his property, and that he suffered from
emotional distress, high blood pressure and sleep-
lessness as a result of the plaintiff’s conduct.3 The plain-
tiff filed a reply denying the allegations in the counter-
claim.
2
In the 2002 action, the trial court rendered judgment for the defendant
after concluding that the plaintiff had no right to use the beach along the
boundary of the defendant’s property, and this court affirmed that portion
of the trial court’s judgment. See Palmieri v. Cirino, 90 Conn. App. 841,
845–48, 880 A.2d 172, cert. denied, 276 Conn. 927, 889 A.2d 817 (2005). In
the defendant’s counterclaim in the present case, he alleged that the plaintiff
and/or Palmieri Cove Associates, LLC, nevertheless continued to seek owner-
ship of the beach area through different legal theories in the 2010, 2012 and
2015 lawsuits.
3
Specifically, the defendant alleged that, in addition to having to defend
himself against the lawsuits filed by the plaintiff and/or Palmieri Cove Associ-
ates, LLC, the plaintiff, among other things, had placed posters around
their neighborhood depicting the defendant’s photograph with the caption
‘‘ ‘stalker’ ’’; filed false complaints with the New Haven Building Department
and the Water Pollution Control Authority of the City of New Haven; removed
100 feet of the defendant’s fence on three different occasions; cut down
trees and shrubs on the defendant’s property; and lunged at the defendant
with a plastic baseball bat, which caused the defendant to fall to the ground,
and the plaintiff then sprayed the defendant with a garden hose.
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After the complaint was dismissed in March, 2017, a
trial on the defendant’s counterclaim took place on July
28, 2017.4 The plaintiff failed to appear for trial and the
court, Robinson, J., entered a default against him on
the counterclaim. In light of the default, which elimi-
nated any issues as to the plaintiff’s liability, the only
issue for the court to determine was the appropriate
amount of damages to be awarded to the defendant.5
After hearing evidence as to damages, Judge Rob-
inson awarded the defendant a total of $466,304.07 in
compensatory damages and determined that the defen-
dant also was entitled to attorney’s fees as punitive
damages. She explained: ‘‘The defendant . . . pre-
sented evidence that he incurred attorney’s fees and
surveyor’s fees to defend himself against the multiple
lawsuits initiated by the [plaintiff and/or Palmieri Cove
Associates, LLC] . . . . Further, the defendant . . .
presented evidence that he sustained severe emotional
distress and was forced to seek medical and mental
health treatment because of the intentional actions of
the [plaintiff] . . . .
‘‘The court finds that the defendant . . . is entitled
to compensatory damages in the amount of $216,304.07
for economic losses and $250,000 for noneconomic
losses for the abuse of process claim and the negligent
infliction of emotional distress claim. The court also
finds that the defendant . . . is entitled to punitive
damages resulting from the intentional infliction of
emotional distress and will award itemized attorney’s
4
The defendant had moved to dismiss the complaint on the basis that
the plaintiffs did not have a legally cognizable interest in the property at
issue and, therefore, lacked standing to bring the action.
5
‘‘[E]ntry of default, when appropriately made, conclusively determines
the liability of a defendant. . . . Following the entry of a default, all that
remains is for the plaintiff to prove the amount of damages to which it is
entitled.’’ (Internal quotation marks omitted.) Dawson v. Britagna, 162 Conn.
App. 801, 810 n.3, 133 A.3d 880 (2016).
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Palmieri v. Cirino

fees, when they are submitted to the court. Therefore,
the total award for compensatory damages is
$466,304.07. The court will award attorney’s fees when
an affidavit of attorney’s fees is submitted.’’
More than five years later, on November 9, 2022, the
defendant filed an affidavit in support of attorney’s fees.
The affidavit set forth attorney’s fees and costs totaling
$76,693.50. Specifically, the defendant’s counsel
averred that the defendant had incurred $33,690 in attor-
ney’s fees in connection with her representation of him
in the present case, since March, 2015, and that the
defendant also had incurred $43,003.50 in attorney’s
fees to other counsel in connection with a bankruptcy
proceeding that had taken place postjudgment. The
plaintiff filed an objection to the defendant’s request
for attorney’s fees.
By the time the defendant filed the affidavit in support
of attorney’s fees, Judge Robinson was no longer a judge
of the Superior Court. The matter was then referred to
the court, Hon. Jon C. Blue, judge trial referee, which
first held a hearing on the issue of attorney’s fees on
December 7, 2022. At that hearing, the plaintiff’s counsel
argued consistently with the plaintiff’s written objection
that the defendant was not entitled to postjudgment
attorney’s fees6 and that the court should deny the
defendant’s request altogether because the affidavit was
At the hearing, the parties’ counsel provided the court with background
6

information regarding the postjudgment proceedings. They explained that,
after the judgment was rendered on July 28, 2017, the plaintiff initially paid
only a portion of the compensatory damages award to the defendant. The
defendant subsequently recorded judgment liens on three of the plaintiffs’
properties and then commenced an action to foreclose those liens. In or
around August, 2019, while the foreclosure proceeding was still pending,
the plaintiff filed for bankruptcy. The bankruptcy proceeding subsequently
was dismissed upon the defendant’s motion. Approximately one and one-
half years after the bankruptcy dismissal, the plaintiff paid the defendant
the remainder of the compensatory damages award after selling one of his
properties.
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Palmieri v. Cirino

filed beyond the thirty day deadline set forth in Practice
Book § 11-21.7 Judge Blue responded that he would
consider the affidavit of the defendant’s counsel and
the issue of attorney’s fees, even though that issue was
‘‘belatedly’’ before him. Judge Blue also ruled that he
did not have authority pursuant to Judge Robinson’s
order to award postjudgment attorney’s fees, because
that order awarded attorney’s fees as punitive damages
for ‘‘past . . . wrongdoing.’’ Judge Blue explained that
he was limited to awarding attorney’s fees that were
‘‘incurred prior to and on July 28, 2017,’’ the date of
the judgment, and that it would require the defendant’s
counsel to submit an amended affidavit of attorney’s
fees reflecting the fees incurred for that time period.
Judge Blue subsequently issued an order directing the
defendant’s counsel to submit an amended affidavit of
attorney’s fees by December 14, 2022.
The defendant filed an amended affidavit of attor-
ney’s fees on December 14, 2022, and the plaintiff filed
an objection. The defendant subsequently filed a ‘‘cor-
rected’’ amended affidavit on March 8, 2023 (corrected
affidavit). In the corrected affidavit, the defendant’s
counsel averred that the defendant had incurred a total
of $216,304.07 in attorney’s fees, from 2002 until May,
2017, to defend himself in the numerous actions filed
by the plaintiff and/or Palmieri Cove Associates, LLC.
The defendant’s counsel also averred that the defendant
had incurred an additional $5190 in expert witness fees
during that time, and, therefore, the ‘‘new grand total’’
amount of fees claimed was $221,494.07.
7
Practice Book § 11-21 provides: ‘‘Motions for attorney’s fees shall be
filed with the trial court within thirty days following the date on which the
final judgment of the trial court was rendered. If appellate attorney’s fees
are sought, motions for such fees shall be filed with the trial court within
thirty days following the date on which the Appellate Court or Supreme
Court rendered its decision disposing of the underlying appeal. Nothing in
this section shall be deemed to affect an award of attorney’s fees assessed
as a component of damages.’’
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Judge Blue addressed the corrected affidavit at a
March 9, 2023 hearing. At the outset, Judge Blue indi-
cated that Judge Robinson’s order awarding punitive
damages in the form of attorney’s fees did not include
expert witness fees. The defendant’s counsel stated that
the total amount of attorney’s fees sought, excluding
the expert witness fees, was $200,494.07.8
The plaintiff’s counsel again argued that the court
should decline to award attorney’s fees because the
defendant did not file an affidavit of attorney’s fees until
more than five years after the judgment was rendered,
which was well beyond the thirty day deadline set forth
in Practice Book § 11-21. Judge Blue concluded that an
award of attorney’s fees was not time barred under
that provision. Judge Blue recognized that, pursuant to
Meadowbrook Center, Inc. v. Buchman, 328 Conn. 586,
604, 181 A.3d 550 (2018), the thirty day deadline is
directory, rather than mandatory. Judge Blue explained
that he would exercise his discretion to permit the claim
for attorney’s fees because, ‘‘although the [defendant’s]
claim is somewhat belated here, this is a little bit differ-
ent because Judge Robinson has ordered the payment
of attorney’s fees. . . . Attorney’s fees were ordered
by Judge Robinson in 2017.’’
In addition, Judge Blue questioned the defendant’s
counsel as to why the itemization of fees included work
beginning in October, 2002, when ‘‘this is a 2015 case.
. . . I don’t see how you could have been working on
a 2015 case in 2002.’’ The defendant’s counsel
responded that ‘‘there were multiple pieces of litigation
. . . that were part of the abuse of process trial.’’ Judge
Blue recognized that, typically, attorney’s fees are
awarded only for the case at issue, and, if Judge Rob-
inson had wanted to award attorney’s fees from a differ-
ent case, ‘‘she could have said so and she did not.’’
8
It is unclear from our review of the corrected affidavit how the defen-
dant’s counsel arrived at the figure of $200,494.07.
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The defendant’s counsel then directed Judge Blue’s
attention to the portion of Judge Robinson’s order in
which she stated that the defendant ‘‘presented evi-
dence that he incurred attorney’s fees and surveyor’s
fees to defend himself against the multiple lawsuits
. . . .’’ The plaintiff’s counsel argued in response that
Judge Robinson was not, in her award of attorney’s
fees, referring to the multiple lawsuits that preceded
the present action, because her compensatory damages
award of more than $466,000 ‘‘presumably included
that.’’ Judge Blue disagreed with the plaintiff’s counsel,
noting that Judge Robinson awarded the compensatory
damages before stating that she would ‘‘award attor-
ney’s fees when [an] affidavit of attorney’s fees is sub-
mitted.’’ Judge Blue explained: ‘‘That, to me, means
that the compensatory damages award does not include
attorney’s fees. . . . [T]hat is for emotional distress.’’
At the conclusion of the hearing on March 9, 2023,
Judge Blue issued an oral decision9 in which he awarded
the defendant $200,494.07, concluding that Judge Rob-
inson had intended to award attorney’s fees for the
‘‘multiple lawsuits’’ that extended from 2002 until 2017.
This appeal followed.
At the outset, we note the legal principles governing
the review of a trial court’s award of attorney’s fees
or other litigation expenses. ‘‘We have explained that
Connecticut adheres to the American rule . . . [which
reflects the idea that] in the absence of statutory or
contractual authority to the contrary, a successful party
is not entitled to recover attorney’s fees or other ordi-
nary expenses and burdens of litigation . . . .’’ (Inter-
nal quotation marks omitted.) Saunders v. Briner, 334
Conn. 135, 179, 221 A.3d 1 (2019). ‘‘Despite the general
rule, our Supreme Court has recognized exceptions for
9
Judge Blue signed the transcript of his oral decision in compliance with
Practice Book § 64-1.
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cases in which the party or its counsel has acted in bad
faith . . . and for cases in which attorney’s fees are
assessed as punitive damages.’’ (Citation omitted.)
Mangiante v. Niemiec, 98 Conn. App. 567, 570, 910 A.2d
235 (2006). ‘‘[C]ommon-law punitive damages are akin
to statutorily authorized attorney’s fees in practicality
and purpose, insofar as both provide the same relief
and serve the same function . . . namely, fully com-
pensating injured parties.’’ (Citation omitted; footnote
omitted; internal quotation marks omitted.) Hylton v.
Gunter, 313 Conn. 472, 486, 97 A.3d 970 (2014); see
also id., 484 (common-law punitive damages are limited
under Connecticut law to litigation expenses, such as
attorney’s fees less taxable costs).
‘‘It is well established that we review the trial court’s
decision to award attorney’s fees for abuse of discre-
tion. . . . This standard applies to the amount of fees
awarded . . . and also to the trial court’s determina-
tion of the factual predicate justifying the award. . . .
Under the abuse of discretion standard of review, [w]e
will make every reasonable presumption in favor of
upholding the trial court’s ruling, and only upset it for
a manifest abuse of discretion. . . . [Thus, our] review
of such rulings is limited to the questions of whether
the trial court correctly applied the law and reasonably
could have reached the conclusion that it did.’’ (Internal
quotation marks omitted.) Saunders v. Briner, supra,
334 Conn. 179.
To the extent that the plaintiff’s claims require us to
interpret Judge Robinson’s order, our review is plenary.
See Glory Chapel International Cathedral v. Philadel-
phia Indemnity Ins. Co., 224 Conn. App. 501, 512, 313
A.3d 1273 (2024); see also Clark v. Clark, 150 Conn. App.
551, 569 n.12, 91 A.3d 944 (2014) (‘‘[t]he construction
of an order is a question of law over which we exercise
plenary review’’ (internal quotation marks omitted)).
‘‘As a general rule, [orders and] judgments are to be
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construed in the same fashion as other written instru-
ments. . . . The determinative factor is the intention
of the court as gathered from all parts of the [order
or] judgment. . . . The interpretation of [an order or]
judgment may involve the circumstances surrounding
[its] making . . . . Effect must be given to that which
is clearly implied as well as to that which is expressed.
. . . The [order or] judgment should admit of a consis-
tent construction as a whole.’’ (Internal quotation marks
omitted.) Sessa v. Reale, 213 Conn. App. 151, 161–62,
278 A.3d 44 (2022).
I
The plaintiff first claims that Judge Blue’s award of
attorney’s fees was improper because the affidavit of
the defendant’s counsel was filed well beyond the thirty
day deadline set forth in Practice Book § 11-21, and the
defendant failed to demonstrate that the untimely filing
was the result of excusable neglect pursuant to Mead-
owbrook Center, Inc.10 We are not persuaded.
Practice Book § 11-21 does not govern the court’s
award of attorney’s fees as punitive damages. Section
11-21 provides in relevant part: ‘‘Motions for attorney’s
fees shall be filed with the trial court within thirty days
following the date on which the final judgment of the
trial court was rendered. . . . Nothing in this section
shall be deemed to affect an award of attorney’s fees
10
In Meadowbrook Center, Inc., our Supreme Court concluded that the
thirty day deadline provided by Practice Book § 11-21 is directory, rather
than mandatory, and thus affords the trial court discretion to entertain
untimely motions for attorney’s fees in appropriate cases. Meadowbrook
Center, Inc. v. Buchman, supra, 328 Conn. 604. Our Supreme Court then
set forth factors for a trial court to consider in exercising that discretion
to determine whether to allow an untimely filing and to determine whether
there is ‘‘excusable neglect’’ for the late filing, including ‘‘[1] the danger of
prejudice to the [nonmovant], [2] the length of the delay and its potential
impact on judicial proceedings, [3] the reason for the delay, including
whether it was within the reasonable control of the movant, and [4] whether
the movant acted in good faith.’’ (Internal quotation marks omitted.) Id., 606.
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Palmieri v. Cirino

assessed as a component of damages.’’ (Emphasis
added.) Consistent with the last sentence of that provi-
sion, this court has held that ‘‘[t]he time limits of . . .
§ 11-21 do not apply to a trial court’s award of attorney’s
fees as damages.’’ Mangiante v. Niemiec, 98 Conn. App.
567, 576, 910 A.2d 235 (2006); see also, e.g., Torrance
Family Ltd. Partnership v. Laser Contracting, LLC,
94 Conn. App. 526, 528 n.1, 893 A.2d 460 (2006) (‘‘[i]nso-
far as the statute authorizing the award of attorney’s
fees . . . clearly contemplates those fees as a compo-
nent of damages . . . we conclude that . . . § 11-21 is
wholly inapplicable’’).

Judge Robinson explicitly stated that she was award-
ing attorney’s fees as punitive damages for the defen-
dant’s claim of intentional infliction of emotional dis-
tress. The defendant, therefore, was not required to
comply with the thirty day deadline set forth in Practice
Book § 11-21. See Mangiante v. Niemiec, supra, 98
Conn. App. 576. In addition, because the affidavit was
not untimely filed under that provision, Judge Blue did
not need to determine whether there was excusable
neglect pursuant to Meadowbrook Center, Inc.11 Accord-
ingly, Judge Blue did not abuse his discretion in award-
ing attorney’s fees even though the affidavit of the
defendant’s counsel was filed more than thirty days
after the judgment rendered by Judge Robinson.

II

The plaintiff also claims that Judge Blue abused his
discretion in awarding attorney’s fees for expenses
incurred by the defendant in defending the prior actions
between the parties. Specifically, the plaintiff argues
that the amount of the attorney’s fees award should
11
The attorney’s fees at issue in Meadowbrook Center, Inc., were not
awarded as a component of damages. See Meadowbrook Center, Inc. v.
Buchman, supra, 328 Conn. 590.
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have been limited to the fees incurred in the present
action. We agree.
At the conclusion of the March 9, 2023 hearing, Judge
Blue explained his reasoning for the amount of the
$200,494.07 award of attorney’s fees as follows: ‘‘Ordi-
narily, the court would award just the attorney’s fees
spent on this case. However, this is an award of . . .
punitive damages given by Judge Robinson. And it is
for . . . she specifically mentions the attorney’s fees
in multiple lawsuits. So, it is my best reading of Judge
Robinson’s order . . . that she intended for attorney’s
fees in the multiple litigations to be awarded. I might
be right. I might be wrong. But I believe that’s what
Judge Robinson intended. And I think that her, to me,
evident intention ought to be honored.’’
We do not agree with Judge Blue’s interpretation
of Judge Robinson’s order. Although Judge Robinson
stated that the defendant had ‘‘presented evidence that
he incurred attorney’s fees . . . to defend himself
against the multiple lawsuits initiated by the [plaintiff
and/or Palmieri Cove Associates, LLC],’’ she did not
state that those expenses would serve as the basis for
her award of punitive damages. The record provided
to this court does not reflect the basis for Judge Rob-
inson’s calculation of the economic losses that were
included in the compensatory damages award.12 In the
corrected affidavit, however, the defendant’s counsel
averred that the defendant had incurred a total of
$216,304.07 in attorney’s fees, which is the exact
12
At oral argument before this court, the defendant’s counsel explained
that the evidence of economic loss that she had presented to Judge Robinson
included the defendant’s medical expenses, property damage expenses, and
the attorney’s fees that the defendant had incurred in defending against the
‘‘litany of litigation’’ brought by the plaintiff and/or Palmieri Cove Associates,
LLC. As for the evidence of the attorney’s fees incurred by the defendant,
the defendant’s counsel stated that she had submitted to Judge Robinson
the same spreadsheet that she submitted to Judge Blue in considering the
corrected affidavit of attorney’s fees.
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amount of economic damages that Judge Robinson
included in the compensatory damages award.
At oral argument before this court, the defendant’s
counsel suggested that Judge Robinson properly could
have awarded attorney’s fees from the prior actions as
economic damages, to make the defendant whole, and
again as punitive damages, to serve as a deterrent to
future misconduct. The defendant’s counsel presented
no legal support, and we have found none, to support
this proposition. Instead, our case law indicates that
common-law punitive damages are designed to ‘‘fully
compensat[e] injured parties’’; Hylton v. Gunter, supra,
313 Conn. 485–86; and that they are ‘‘restricted to cost
of litigation less taxable costs of the action being tried
and not that of any former trial.’’ (Emphasis added;
internal quotation marks omitted.) Harty v. Cantor
Fitzgerald & Co., 275 Conn. 72, 93, 881 A.2d 139 (2005);
see also id., 96–98 (characterizing certain statutory dou-
ble damages as more punitive in nature than common-
law punitive damages). Accordingly, we conclude that
the amount of the attorney’s fees awarded should have
been limited to the expenses incurred in the present
action, and that Judge Blue improperly awarded attor-
ney’s fees for expenses incurred by the defendant in
defending the prior actions between the parties.
The judgment is reversed and the case is remanded
with direction to conduct a new hearing on the defen-
dant’s motion for attorney’s fees consistent with this
opinion.
In this opinion the other judges concurred.