Opinion
FSTCV156024492S
09-06-2017
The Stamford Hospital v. Chaim Schwartz et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
A. William Mottolese, JUDGE TRIAL REFEREE.
The plaintiff has filed three postjudgment motions which seek the imposition of sanctions against the defendants. The first motion asks the court to make a special finding under G.S. § 52-226a that the denials and defenses asserted by the defendants to the action were without merit and not asserted in good faith. The second motion requests that attorneys fees be awarded against both parties based on their bad faith conduct in defense of the plaintiff's claim. The third motion seeks attorneys fees based upon the defendant, Reyna Gelb's contractual obligation pursuant to paragraph 4 of the " Patient Authorization and Agreement." The court held a hearing on the motions, ordered supplemental briefing and pursuant to P.B. § 23-58(a)(6) remanded the case back to the fact finder with direction to make a finding of whether any of the defendants' actions, other than the court's previous finding with respect to the defense of accord and satisfaction, were made in bad faith. The remand order made reference to Fattibene v. Kealey, 18 Conn.App. 344, 558 A.2d 677 (1989), and Maris v. McGrath, 269 Conn. 834, 850 A.2d 133 (2004), for guidance. On May 30, 2017 the fact finder filed a supplemental memorandum of decision in which he found that the defendants acted in bad faith with respect to most of their special defenses, their denial of parentage of their biological child in their amended answer and their overall lack of credibility.
The plaintiff also filed a motion for double costs and a motion for determination of interest associated with plaintiff's offer of compromise. These motions were withdrawn at the postjudgment hearing.
1.
Bad Faith Under G.S. § 52-226a and Otherwise
By its terms this statute applies to civil actions tried to a jury, and as applied to a defendant, requires twin findings: (i) that a defense was without merit; and (ii) that it was not asserted in good faith. While no appellate case law could be found which discusses the applicability of this statute to nonjury trials, some trial courts have done so. See Walczyk v. Barberino Realty & Dev. Corp., . Based on this court's analysis it is unnecessary to decide this question because attorneys fees for bad faith misconduct may be awarded independently of the statute.
As a preliminary matter, where as here sanctions are sought for litigant misconduct in a case tried to a fact finder, the court must determine whether the court is limited by the fact finder's factual findings as they appear in the fact finder's initial memorandum of decision of October 5, 2016 and in the supplemental decision of May 30, 2017, or whether it may go beyond these findings and make its own independent determination by examining the record.
It is well established in this state that not only do our courts have the inherent power to regulate the conduct of litigation by its participants, State Bar Association v. Connecticut Bank and Trust Company, 145 Conn. 222, 231, 140 A.2d 863 (1958), but also this power extends to laypersons who choose to represent themselves. See Lederle v. Spivey, 174 Conn.App. 592, 166 A.3d 636 (2017). On the other hand, " it is the established policy of the Connecticut courts to be solicitous of pro se litigants when it does not interfere with the rights of other parties . . ." Macricostas v. Kovacs, 67 Conn.App. 130, 133, 787 A.2d 64 (2001). § 52-226a is a codification of that power, authorizes sanctions for certain conduct which offends that power and creates an evidentiary dividend which may be used in subsequent litigation. That power is especially exercisable when the laypersons are commercially sophisticated as they are in the present case. The court notes that defendant Gelb has a bachelor of arts in psychology, a master's degree in business administration from Columbia University and did business planning and financial control for a company for eight years. The defendant Schwartz has a bachelor's degree in finance and accounting, an MBA from New York University and is vice president for fair lending practices at a major banking institution. As this court noted in its memorandum of decision of January 19, 2017 a reviewing court may not substitute its findings for those of the trier of fact and findings can be overturned only when they are clearly erroneous. Pomarico v. Gary Constr., Inc., 5 Conn.App. 106, 112, 497 A.2d 70 (1985), cert. den., 197 Conn. 816, 500 A.2d 1336 (1985). On the other hand, the court has supervisory power over litigants which necessarily transcends the ordinary delimiting rule announced in Pomerico when the conduct of the litigant is directly at issue. To put it another way, the court has overarching authority to safeguard the integrity of the litigation process and to protect it from making decisions based on untruthful statements. Thus, the court must be free to scour the entire record for such conduct in the event that a single instance of facial misconduct is brought to the court's attention. See Burton v. Mottolese, 267 Conn. 1, 835 A.2d 998 (2003). Thus, " the court has inherent authority to impose sanctions for bad faith pleading even in the absence of a specific rule." Fattibene v. Kealey, 18 Conn.App. at 358-59, supra .
The starting point in this undertaking is to examine the findings of the fact finder in both of his memoranda of decision. In his second memorandum the fact finder states: " First and foremost, this ATR reiterates its initial findings regarding the credibility of the Defendants; that it was strained to accept any testimony provided by either Defendant as truthful. That alone gives rise to an overall finding of bad faith." (Emphasis in original.) With regard to these initial findings this court devoted a whole section to this issue in its first decision. Based on the fact finder's finding and its own independent examination of the record the court concluded that the deficit in the defendants' credibility permated the entire proceeding. This was simply an application of the maximum " falsus in uno, falsus in omnibus." The court then cited a single reference at page 5, footnote 1 as support for this conclusion. The primary basis for this conclusion was the defendants' denial of the parentage of their biological daughter, the patient, Jennifer. An examination of the trial transcripts reveals that they are replete with occasions too numerous to catalog where there was outright denial followed by equivocation on the issue. An example of the denial is found in the defendant Gelb's testimony.
After reading the transcript of the trial, the court characterized the defendant's testimony as " a study in prevarication, equivocation and obfuscation."
Direct Examination by Attorney Ruszkowski:
Q: Good afternoon Ms. Gelb isn't it true that you are the mother of Jennifer Schwartz?
A: I don't know Jennifer is the--is the child that lives with me but I was not with her all the time in the hospital after I gave birth so I'm not sure if she's the child I gave birth to.
Q: Okay so you're stating here under affirmation, that you don't know whether you're the mother of Jennifer Sara Schwartz?
A: Correct
Q: You gave birth to her, isn't it true that you gave birth to her at the Stamford Hospital in August 2011?
A: I gave birth to a daughter at Stamford Hospital.
Q: If you're uncertain that Jennifer Schwartz is your child, have you made any efforts to locate a child that could potentially be yours rather than Jennifer?
A: No.
An example of equivocation is found in the following colloquy:
Examination by Attorney Ruszkowski
Q: Isn't it true that you are the mother of Jennifer Sara Schwartz?
A: I don't know.
Q: Jennifer was born to the marriage, correct?
A.: A daughter was born to the marriage.
Q: And you don't know if Jennifer Sarah Schwartz is that correct?
A: Correct.
The Court: I will ask you, are you the parent of Jennifer Schwartz, the named child?
The Witness (defendant Gelb): I don't know.
The Court: Okay. Are you saying you don't know because you are unaware as to whether the child that is the subject matter of this litigation is actually yours?
The Witness (defendant Gelb): Correct.
And for the reason and justification of the denial, the defendant Schwartz offered the following:
By plaintiff's attorney:
Q: You called Jennifer and acknowledge her as that (biological child) for all other purposes and all other situations, except this litigation. Correct?
A: Correct
Q: And you are doing that because you think if you cast some doubt on whether you are the parent of the patient, that will absolve your duty to pay for her. Correct?
A: Correct.
As for her statutory and contractual obligation to pay for her daughter's medical expenses defendant Gelb answered:
Plaintiff's attorney:
Q: Do you believe that you are obligated to pay her medical expenses?
A: I don't know.
Q: Are you listed as her mother--well, let me ask you it this way. Isn't it true that you are listed as her mother on her birth certificate?
A: Yes.
As to the defendant Schwartz, in addition to the denial of parentage quoted in the initial decision, there are other examples. The following colloquy occurred between plaintiff's attorney and the defendant Schwartz:
Q: Do you. know anybody named Sara Jennifer Schwartz?
A: No.
Q: Do you have a familial relationship to anyone named Sara Jennifer Schwartz?
A: No.
The above is an example of equivocation and obfuscation caused by counsel's inadvertent reversal of the child's first and middle name. The following is an example of the scheme which the defendants developed to avoid payment.
Plaintiff's attorney:
Q: Isn't it true Miss Gelb that you are the biological mother of Jennifer Sara Schwartz?
A: Yes.
Q: So you and your husband, you created that doubt solely for the purpose of this litigation? Correct.
A: Yes.
Then questioned by Mr. Schwarz.
Q: Is there a difference between when you tell people outside of this courtroom that Jennifer is yours--is your daughter, and when you're in this courtroom in terms of what your obligations--I'm sorry, let me rephrase that. When you tell people outside of this courtroom that Jennifer is your daughter, are you under oath?
A: No.
Further testimony by Mr. Schwartz:
A: There were other providers that I owed and I refused to pay them and they stopped bothering me for collection because I disagreed with them.
As an example of both outright denial of paternity and further equivocation the following colloquy occurred between plaintiff's counsel and Mr. Schwartz.
Q: Question by plaintiff's counsel: Mr. Schwartz, isn't it true that up until this point you denied knowledge under oath at your deposition and in court papers about whether you're the father of Jennifer Sara Schwartz.
A: I denied knowledge, but I explicitly stated that I believe that she--that Jennifer is my daughter. That I file tax returns claiming her as a dependent, that she is on my birth certificate. That in all respects, aside from when I am under oath that I claim that she is my daughter . (Emphasis added.) And my understanding in doing this, is that I--there is--there's nothing wrong with--ok.
And my understanding in doing this is that there is a difference in court--and this may be completely wrong because I'm pro se--but in court, the standard is knowledge, not belief. Now that may not be true, and if it's not true, so then it doesn't matter. So then she is my daughter if knowledge is belief.
If the--if the standard is knowledge, then--then she's not my daughter or--I'm sorry--she's not--it's not that she's not my daughter, I don't know if she's my daughter, never had a paternity test.
Now, I also believe, and this may not be true, that it's--OK to cast doubt and to require the opposing party--to prove that Jennifer Schwartz is my daughter, if the standard is knowledge.
Q: Isn't it true that you have absolutely no evidence that would support the notion that Jennifer Sara Schwartz is not your biological daughter?
A: That's correct.
The next step in this process is for the court to apply the two-part test established for determining whether a lay person's conduct constitutes bad faith. Munro v. Munoz, 146 Conn.App. 853, 858, 81 A.3d 252 (2013). A detailed exposition of what is necessary for the court to assess whether this test has been met is found in the recent case of Lederle v. Spivey, supra .
" [A] litigant seeking an award of attorneys fees for the bad faith conduct of the opposing party faces a high hurdle." Berzins v. Berzins, 306 Conn. 651, 662, 51 A.3d 941 (2012). To ensure . . . that fear of an award of attorneys fees against them will not deter persons with colorable claims from pursuing those claims, we have declined to uphold awards under the bad-faith exception absent both clear evidence that the challenged actions are entirely without color and [are taken] for reasons of harassment or delay or for other improper purposes . . . and a high degree of specificity in the factual findings of the lower courts. (Internal quotation marks omitted.) Maris v. McGrath, 269 Conn. 834, 845, 850 A.2d 133 (2004); see also Kupersmith v. Kupersmith, supra, 146 Conn.App. at 97. Thus, our Supreme Court held that " Maris makes clear that in order to impose sanctions pursuant to its inherent authority, the trial court must find both [1] that the litigant's claims were entirely without color and [2] that the litigant acted in bad faith." (Emphasis in original.) Berzins v. Berzins, supra, 663.
Accordingly, to determine whether the litigant's claims were entirely without color, the court must apply [t]he standard for colorability [which] varies depending on whether the claimant is an attorney of a party to the litigation . . . If the claimant is an attorney, a claim is colorable if a reasonable attorney could have concluded that facts supporting the claim might be established, not whether such facts had been established . . . If the claimant is a party to the litigation, a claim is colorable, for purposes of the bad faith exception to the American rule, if a reasonable person, given his or her first hand knowledge of the underlying matter, could have concluded that the facts supporting the claim might have been established. (Citations omitted.)
According to the bad faith standard, the court must assess whether there has been substantive bad faith as exhibited by, for example, a party's use of oppressive tactics or its willful violations of court orders; [(The appropriate focus for the court . . . is the conduct of the party in instigating or maintaining the litigation. (Internal quotation marks omitted.) Berzins v. Berzins, 306 Conn. 662, supra .
Moreover, our Supreme Court's holding in Berzins makes clear that the two required findings, i.e., colorability and bad faith, must be separate from each other; Rinfret v. Porter, 173 Conn.App. 498, 509-10, 164 A.3d 812 (2017) (referring to Berzins v. Berzins, supra, 306 Conn. 661); and the court must set forth its factual findings with a high degree of specificity. Maris v. McGrath, supra, 269 Conn. 848.
A. First Prong--Colorability
The issue may be stated as follows. Does the defendants' conduct in denying the parenthood of their child while under oath in order to defeat legitimate charges made by the plaintiff for medical services rendered to their child constitute a claimable defense to the action? The answer depends upon whether a reasonable person, given his or her first hand knowledge of the underlying matter could have concluded that the facts supporting the claim of nonparentage might have been established. " A reasonable person is one who acts with honest intentions." State v. Lenczyk, 1 Conn.App. 270, 271, 470 A.2d 1240 (1984). Because the defendants were the biological parents of the child there would be no one in the world who could or would have known the underlying facts of parentage better than the defendants. Finally, no reasonable parent acting with honest intentions could have concluded that Jennifer was not their child. The defendants clearly acted with a dishonest purpose, first when in paragraph 2 of their respective answers, they denied paragraph 2 of the complaint which alleges that the defendants are the parents of their child, the patient. This denial becomes even more poignant when it is viewed in the context of the common-law presumption of legitimacy which provides that a child born in wedlock is presumed to be the issue of the mother and her husband. Weidenbacher v. Duclos, 234 Conn. 51, 63, 661 A.2d 988 (1995). Coupled with this presumption is G.S. § 46b-37 which imposes statutory liability on the defendant parents for the necessary and reasonable medical services rendered to their child and to otherwise provide financial support for their child.
As noted in the court's prior decision, the defendants demonstrated exceptional acumen in researching the law and fashioning their legal argument but they apparently overlooked this principle of law.
Historically our courts have imposed sanctions for untruthful pleadings. " A plea of general denial to material allegations of the complaint which the defendant knew to be true subjected him to payment of expenses incurred to establish the truth." Hatch v. Thompson, 67 Conn. 74, 76, 34 A. 770 (1895). Likewise in Erwin M. Jennings Co. v. Digenova, 107 Conn. 491, 494, 141 A. 866 (1928), the court ruled that the defendant parent should have been charged with the plaintiff's reasonable expenses since the defendant had " untruly pleaded denial of a fact without reasonable cause." Our practice book rules similarly address this subject. Section 4-2(b) provides as follows: " The signing of any pleading, motion, objection or request shall constitute a certificate that the signer has read such document, that to the best of the signer's knowledge, information and belief there is good ground to support it, that it is not interposed for delay, and that the signer has complied with the requirements of Section 4-7 regarding personal identifying information." (Emphasis added.) Further, Section 10-5 provides as follows: " Any allegation or denial made without reasonable cause and found untrue shall subject the party pleading the same to the payment of such reasonable expenses, to be taxed by the judicial authority, as may have been necessarily incurred by the other party by reason of such untrue pleading; provided that no expenses for counsel fees shall be taxed exceeding $500 for any one offense. Such expenses shall be taxed against the offending party whether that party prevails in the action or not. (See General Statutes § 52-99 and annotations.)" (Emphasis added.)
Disavowal of previously acknowledged child parentage to avoid a debt runs counter to accepted norms of a civilized world. Fidelity to one's child is so rooted in tradition and conscience as to be regarded as fundamental. See Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (1934). To paraphrase Justice Cardozo in Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), fidelity to one's child is implicit in the concept of a just society. In the present cast the defendants used their child as a bargaining chip to avoid payment of a legitimate charge which they were legally obligated to pay. As such, the denial and the defense made at trial were utterly without color because they constituted an oppressive tactic and were designed to achieve a dishonest purpose. This finding is supported by clear evidence.
In a parent termination case instituted by a child's father our Supreme Court denounced the practice in the following way. " It would be anathema for our law to allow parents to terminate voluntarily their parental rights 'solely for the purpose of evading or relieving [themselves] of responsibility to pay child support.'" 3 D. Kramer, Legal Rights of Children (2d Ed. 1994) § 28.14, p. 45. As one court wrote, " [s]imply put, no parent may blithely walk away from his or her parental responsibilities." In Interest of A.B., 151 Wis.2d 312, 322, 444 N.W.2d 415 (1989) (alternate citations omitted); In re Bruce R., 234 Conn. 194, 200, 662 A.2d 107 (1995).
The phrase " clear evidence" embodies the same substantive standard as the phrase " clear and convincing proof." Wildwood Associates, LTD v. Esposito, 211 Conn. 36, 42, n.3, 557 A.2d 1241 (1989).
Section 52-226a only requires a single defense to be without merit and not asserted in good faith before the finding can be admissible in a vexatious defense case under G.S. § 52-368. Nevertheless, the fact finder found that multiple other defenses fall into the same category. Therefore, the court now turns to the task of determining which, if any, of the remaining defenses are likewise without color. Pertinent to this phase of the case is the defendants' reliance on two Superior Court decisions which seem to stand for the principle that a defense is not asserted in bad faith if the defense asserted would have been colorable if it had been believed. The first of these is Walczyk v. Barberino Realty & Dev. Corp.,, and the second is Spellane v. Zelitch, . Both of these cases were vexatious litigation actions in which the plaintiffs alleged that prior actions had been brought in bad faith. Each of these cases are based on each court's reading of Fattibene v. Kealey, supra . This court is unable to find any basis in Fattibene for such a conclusion and emphatically rejects the notion that all that is required for colorability is that the defense shows color if the defense is believable. For example, in a credit card collection case if the debtor interposed a defense that all charges were incurred while his card was stolen when in fact he incurred the charges himself, it is obvious that if true, his defense would be colorable but because it is factually untrue it could hardly be colorable. This is precisely the case here where if in fact the defendants were not Jennifer's parents they would not have just a colorable defense but a winning defense. On the contrary, an untruthful defense can never be colorable. By way of contrast, for an illustration of a defense that is colorable the court need go no further than the first special defense which asserts that the hospital bill was unreasonably high. This reflects a mental state which is not uncommon to the average patient who receives an itemized bill that runs multiple pages and contains a total which is often surprisingly high. The fact that the defendants could not prove their defense does not render it without color. On the other hand, while the burden of proof of reasonableness rests on the plaintiff ( Andrews v. Gorby, 237 Conn. 12, 23, 675 A.2d 449 (1996)) reasonableness is a question of fact for the trier and in the present case the defendants offered no evidence of unreasonableness. Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 580, 657 A.2d 212 (1995).
Second Special Defense
" The services were unnecessary and/or harmful." Because the defendants have no training or experience in the field of medicine, in the absence of a proven injury they were unqualified to make such an assertion without an opinion from a medical expert. Thus, there was no reasonable basis for them to have made such an assertion ab initio because no facts existed which supported such a claim, not even from the defendants.
It is significant that the defendants made no complaints about this or any other aspect of the care and treatment until after they received the bill.
Expert testimony is not required " if a conclusion is supported by the subordinate facts which could have been found by the jury . . . The trier of fact need not close its eyes to matters of common knowledge solely because the evidence includes no expert testimony on those matters." (Citation omitted.) Way v. Pavent, 179 Conn. 377, 380, 426 A.2d 780 (1979). When issue to be decided goes beyond field of ordinary knowledge and experience of judges and jurors, expert testimony is required. Franchey v. Hannes, 155 Conn. 663, 666, 237 A.2d 364 (1967).
Fourth Special Defense
" Plaintiff provided false and/or misleading information." Nowhere in the pleadings or at trial are there any issuable facts which support this statement. Not only was this claim not established but not a scintilla of credible evidence was offered to support it.
Fifth Special Defense
" Plaintiff failed to disclose the amount it would charge for the services." Other than the statutory obligation that the plaintiff had to post its hospital charges pursuant to G.S. § 19a-681(a) as a pricemaster where it is available for public inspection at the Office of Healthcare Access, the plaintiff was under no statutory or common-law duty to advise the defendants in advance of the amount of these charges and the defendants have cited none. The court infers from the thorough research and scholarly presentation of their arguments that the defendants consciously chose to ignore the availability of the pricemaster or else faltered in the scope of their research. In the circumstances of this case there is no way that nondisclosure of unit prices or an implication of lack of informed consent to the charges could have any basis in fact and therefore could never have been established.
Sixth Special Defense
" Plaintiff has no proof that it performed the services for which it billed." The obvious implication in this defense that the medical services billed were not actually performed is altogether implausible. Defendant Gelb testified that after they were performed she discussed the very services which the plaintiff provided with her daughter's pediatrician who reassured her that such services were appropriate under the circumstances. Thus, the defendants knew full well before the litigation began that the services billed were actually performed. Again, such a defense would have been an effective defense if it were true but because the defense had no basis in fact, it was not colorable.
Seventh Special Defense
This defense asserts that the hospital's services cannot be identified in the billing documents because they are " not written in plain English." This defense has no factual support for two reasons. First, G.S. § 19a-681 of the General Statutes governs the posting of hospital charges and services and the billing for those services and reads as follows.
Definitions. Filing of current pricemaster. Charges to be in accordance with detailed schedule of charges on file. Penalty. (a) For purposes of this section: (1) " Detailed patient bill" means a patient billing statement that includes, in each line item the hospital's current pricemaster code, a description of the charge and the billed amount; and (2) " pricemaster" means a detailed schedule of hospital charges . . . (Emphasis added).
(b) Each hospital shall file with the office its current pricemaster which shall include each charge in its detailed schedule of charges.
(c) Upon the request of the Department of Public Health or a patient, a hospital shall provide to the department or the patient a detailed patient bill. If the billing detail by line item on a detailed patient bill does not agree with the detailed schedule of charges on file with the office for the date of service specified on the bill, the hospital shall be subject to a civil penalty of five hundred dollars per occurrence payable to the state not later than fourteen days after the date of notification. The penalty shall be imposed in accordance with section 19a-653. The office may issue an order requiring such hospital, not later than fourteen days after the date of notification of an overcharge to a patient, to adjust the bill to be consistent with the detailed schedule of charges on file with the office for the date of service specified on the detailed patient bill.
The defendants have not brought to the court's attention any general statute or regulation which requires that a hospital bill be written in so called plain English. Second, the bill clearly identifies each service performed in language that an ordinary person with no medical training can understand, e.g., " CT scan, " " emerg. room." It is inconceivable given the extent of the defendants' formal education that they were unable to identity these services. This defense is totally frivolous and is without color.
Fifth Special Defense
Accord and satisfaction. Discussion of why this defense was asserted in bad faith is found at page 6-8 of the court's prior decision. Additionally, while accord and satisfaction is a well-recognized defense, when it is used solely as an artifice of avoidance it is clearly deceitful and without color when considered with the other colorless defenses.
Tenth and Eleventh Special Defenses
Unconscionability of the agreement was thoroughly considered and adjudicated at pages 8-10 of the court's prior decision.
Twelfth Special Defense
" Defendant Gelb was never billed for any of the services." This is a blatant falsehood as the defendants' testimony is replete with evidence that they not only received the bill (see exhibit 6) but took affirmative action which was calculated to avoid payment of all but a miniscule amount of the debt, e.g. tender of $112.48 in satisfaction of a bill of $8,076.25. Again, this falsehood was perpetrated for no other purpose than to avoid payment. As such it is colorless. The fact that plaintiffs paid $2,000 for a trial transcript does lend color to their claims.
Fourteenth Special Defense
" The defendant Schwartz did not sign the Patient Authorization and Agreement and therefore cannot be held liable." In view of the defendants' extraordinarily thorough research it is incredulous that they missed perhaps the most basic principle governing financial responsibility of a parent for a minor child. G.S. § 46b-37(b)(2) imposes a legal obligation on a parent of a minor child while residing in the family of the child's parents. Yale Diagnostic Radiology v. Estate of Harun Fountain, 267 Conn. 351, 838 A.2d 179 (2004). So it was immaterial to his liability whether Schwartz signed the agreement. This particular defense would be the only defense which if true, would be meritorious in a hospital collection case where there is no legal relationship between parent and a minor child patient. Because Gelb testified that she recognized her responsibility to pay for the medical services of her minor child because she is a parent, Schwartz's defense becomes disingenuous when he asserts that he has no concomitant responsibility. The defense therefore lacks any indicia of color.
The court concludes that the bad faith findings of the fact finder as they relate to the above defenses are amply supported by the evidence and are not clearly erroneous. Pomarico v. Gary Constr., Inc., 5 Conn.App. at 112, supra .
B. Second Prong--Bad Faith
Our courts have defined bad faith in numerous decisions and in a variety of factual scenarios. For example, in the context of insurance practices our Supreme Court has employed the following definition. " Bad faith implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose. (Citations omitted; internal quotation marks omitted.) Habetz v. Condon, 224 Conn. 231, 237, 618 A.2d 501 (1992)." DeLaConcha of Hartford, Inc. v. Aetna Life Insurance Co., 269 Conn. 424, 433, 849 A.2d 382 (2004). But in Maris v. McGrath, 269 Conn. 834, 847, 850 A.2d 133 (2004), the court defined bad faith a little differently, to wit: " To determine whether the bad faith exception applies, the court must assess whether there has been substantive bad faith as exhibited by, for example, a party's use of oppressive tactics or its willful violations of court orders; [t]he appropriate focus for the court . . . is the conduct of the party in instigating or maintaining the litigation." And in the context of debt avoidance it has been held that a bankruptcy court looks to the totality of the circumstances to determine bad faith, and may consider a wide range of factors, including, " the nature of the debt . . .; the timing of the bankruptcy petition; how the debt arose; the debtor's motive in filing the petition; how the debtor's actions affected creditors; the debtor's treatment of creditors both before and after the petition was filed; and whether the debtor has been forthcoming with the bankruptcy court and the creditors." In re Margaret J. Myers, 491 F.3d 120, 125 (3rd Cir. (2007). With only minor modifications most of these factors are applicable here.
Under either definition the defendants have acted in bad faith. Under the DeLaConcha definition the defendants clearly refused to fulfill their contractual obligation, not prompted by an honest mistake as to their rights or duties, but rather by a carefully contrived scheme prompted by the dishonest purpose of avoiding a financial obligation by lying under oath and asserting defenses which bear no indicia of color. The court agrees with the fact finder that the defendants' prevarications and obfuscation permeated the entire trial and even infiltrated their pleadings. Accordingly, as in Maris v. McGrath, supra, this court specifically finds that the special defenses identified herein were without merit and that they were prompted not by an honest mistake as to either rights or duties but by the wholly sinister motive to avoid payment of all but a proportionately miniscule amount of the debt.
By way of example, although in the context of a dissolution action, some courts have held that child support avoidance by a voluntary career move constitutes bad faith. Garcia v. Garcia, 2012 OK 81, 288 P.3d 931 (Okla. 2012); Rutledge v. Rutledge, 96 Mich.App. 621, 293 N.W.2d 651 (Mich. 1980).
II.
Attorneys Fees
A. Exclusivity of G.S. § 42-150aa
Having found bad faith pursuant to G.S. § 52-226a the court now applies that finding to the plaintiff's motion for attorneys fees which is based on the defendants' bad faith. However, irrespective of bad faith, the plaintiff is entitled to contract-based attorneys fees pursuant to paragraph 4 of the Patient Authorization and Agreement which in pertinent part provides as follows: " Should the account be referred to an attorney for collection, the undersigned shall pay reasonable attorneys fees and collection expenses."
The defendants' first defense to this motion is that the total fees cannot exceed the fifteen percent limit established by G.S. § 42-150aa(b). It is now the law of this state that whenever there is an attorneys fee provision in a consumer party's contract that provision is subject to § 42-150aa. Rizzo Pool Company v. DelGrosso, 240 Conn. 58, 77, n.18, 689 A.2d 1097 (1997). Thus, in the ordinary consumer contract case, which is not coupled with a distinctly different cause of action such as a breach of contract claim with a foreclosure action, Clem Martone Construction, LLC v. Depino, 145 Conn.App. 316, 77 A.3d 760 (2013), § 42-150aa establishes an absolute limit. However, it is a well-recognized principle of statutory construction that no statute " 'is to be construed as altering the common law, farther than its words import [and . . . a statute] is not to be construed as making any innovation upon the common law which it does not fairly express.' (Internal quotation marks omitted.) State v. Luzietti, 230 Conn. 427, 433, 646 A.2d 85 (1994); see State v. Sanchez, 204 Conn. 472, 479, 528 A.2d 373 (1987); Ahern v. New Haven, 190 Conn. 77, 82, 459 A.2d 118 (1982)." (Alternate citations omitted.) Carl J. Herzog Foundation, Inc. v. University of Bridgeport, 243 Conn. 1, 5, 699 A.2d 995 (1997). As discussed above, the common law endows the court with inherent authority to award attorneys fees for bad faith. Moreover, principles of statutory construction support this conclusion. " In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature . . . It is an axiom of statutory construction that legislative intent is to be determined by an analysis of the language actually used in the legislation . . . [W]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature's intent. (Citations omitted; internal quotation marks omitted.) Dos Santos v. F.D. Rich Construction Co., 233 Conn. 14, 20, 658 A.2d 83 (1995)." (Alternative citations omitted.) Rizzo Pool Co. v. DelGrosso, 240 Conn. 58 at 73-74, 689 A.2d 1097. In Rizzo the court construed the scope of section 42-150aa's sister statute, § 42-150bb in determining that the statute did not limit a successful defendant in a consumer contract case to the fifteen percent allowed in § 42-150aa. In doing so the court looked to the plain language of the statute and concluded that " [L]ooking to the plain language of § 42-150bb, we are persuaded that the phrase, 'the terms governing the size of the fee for the commercial party, ' relates to the parties' contract, and not to § 42-150aa. Had the legislature intended to limit a consumer's award of attorneys fees to 15 percent, it would have incorporated the provisions of § 42-150aa by expressly providing 'as provided in section 42-150aa.' Moreover, reading § 42-150bb in context, as we must, it is clear that the phrase, 'the terms governing the size of the fee for the commercial party, ' relates to 'the contract or lease' as provided in the immediately preceding sentence in the statute." Id. at 74. Employing the same reasoning to the present case, from the language of subsection(b) of § 42-150aa, it is clear that the fee limitation was intended to apply to a consumer contract, which by our decisional law is imported into that contract, and not to bad faith conduct of a party which is an actionable wrong which exists independently of the contract. Thus, this court is free to award attorneys fees for bad faith conduct independently of the Patient Authorization and Agreement and therefore has a proper basis for extending that award to the defendant Schwartz.
This statute reads as follows: " (b) If a lawsuit in which money damages are claimed is commenced by an attorney who is not a salaried employee of the holder of a contract or lease subject to the previsions of this section such holder may receive or collect attorneys fees, if not otherwise prohibited by law, of not more than fifteen percent of the amount of any judgment which is entered."
B. Reasonableness and Proportionality
Counsel for the plaintiff has filed an affidavit of attorneys fees which is supported by a brief memorandum in which she seeks a total of $34,082.20 in fees and $2,059 in taxable costs. The affidavit is itemized, identifies each attorney who performed a service, gives each attorney's hourly rate, describes the service and assigns a time factor stated in hours and/or fractions thereof with a corresponding amount. The hourly rate for each attorney who serviced the case ranges from $175.00 to $265.00 with most entries at $185.00. The defendants object to these fees on several grounds.
Costs will be taxed in accordance with P.B. § 18-5 and not by the court in the first instance.
1) Defendant Schwartz disclaims liability because (a) he is not contractually obligated to pay and (b) there is no statute requiring a spouse to pay another spouse's attorneys fees. Ground (a) has been thoroughly covered elsewhere in this opinion and is therefore rejected. Ground (b) reflects a clever attempt to avoid liability by distinguishing Schwartz's statutory liability for his minor child's medical care from interspousal liability for attorneys fees for which there is no liability in this context. This argument is at best disingenuous since it purposefully overlooks statutory parental responsibility fixed by statute.
2) The defendants challenge the reasonableness of the fee charges. The court held an evidentiary hearing to enable the defendants to cross examine the plaintiff's counsel and invited the defendants to offer evidence of their own that the charges are unreasonable. In their written objection and in oral argument the defendants make a claim that the attorneys fees exceed the amount requested in the complaint. The response to that charge is found in Southington 84 Associates v. Silver Dollar Stores, Inc., 237 Conn. 758, 678 A.2d 968 (1996), wherein our Supreme Court held that the stated classification of the case by the plaintiff in the complaint as seeking less than $15,000 is designed for administrative purposes only and does not limit the amount of damages which can be recovered. Moreover, P.B. § 11-21 treats the award of attorneys fees separately from the complaint and defendants make no claim of untimeliness. " Next, the defendants claim unreasonableness because the amount of the fees sought are disproportionate to the amount in controversy. Disproportionality of legal fees is one of the many factors which a court is required to consider in assessing whether an attorneys fee is reasonable. See Rule 1.5(a)(4) of the Rules of Professional Conduct. The cases which discuss the propriety of awarding disproportionate fees focus on the amount recovered in comparison to the amount claimed. See Simms v. Chaisson, 277 Conn. 319, 332-34, 890 A.2d 548 (2006) ($50,000 claimed; $1 recovered). By contrast, here the plaintiff recovered the entire amount claimed. To be sure, the total time of 241.6 hours devoted to this matter is wholly disproportionate to the amount recovered by any ordinary assessment. However, this was no conventional piece of litigation. While the trial itself consumed less than two days, the filing record of 248 entries is greatly disproportionate to the average activity of similar cases. In this regard, at oral argument, the defendants complained that there were two attorneys for the plaintiff in attendance at the trial where only one did the actual trying. It is plainly apparent that this is no ordinary, run of the mill collection case but one that was overburdened with " creative" defenses and objections as well as excessive pleading. Additionally, the level of scholarship, aggressiveness and legal acumen displayed by these highly educated laypersons exceed the level of competence of some of the attorneys who have appeared before the undersigned in almost twenty-nine years on the bench. In the words of the court in Rana v. Terdjanian, 136 Conn.App. 99, 117, 46 A.3d 175 (2017), the defendants have transformed a relatively straightforward collection case into a " pitched legal battle." It is appropriate therefore for the court to consider these factors in addition to those enumerated in Rule 1.5. " [When determining] reasonableness of requested attorneys fees . . . more than [a] trial court's mere general knowledge is required for an award of attorneys fees . . . The burden of showing reasonableness rests on the party requesting the fees, and there is an undisputed requirement that the reasonableness of attorneys fees and costs must be proven by an appropriate evidentiary showing . . . [T]here must be a clearly stated and described factual predicate for the fees sought, apart from the trial court's general knowledge of what constitutes a reasonable fee. That factual predicate must include a statement of the fees requested and a description of services rendered." (Internal quotation marks omitted.) Gagne v. Vaccaro, 118 Conn.App. 367, 371-72, 984 A.2d 1084 (2009); see also Commission on Human Rights & Opportunities v. Sullivan, 285 Conn. 208, 237-38, 939 A.2d 541 (2008)." (Alternate citations omitted.) William Raveis Real Estate, Inc. v. Zajaczkowski, 172 Conn.App. 405, 423, 160 A.3d 363 (2017). " A party need not, however, present expert testimony regarding attorneys fees. Id., 473. A trial court properly may rely on a financial affidavit as well as its own general knowledge and involvement with the trial to ascertain a reasonable attorneys fee. Id., 474." Id. at 424.
Applying these guidelines the court finds that the hourly rates are reasonable and that the time expenditures were reasonably necessary. The plaintiff has therefore met its burden of providing a factual predicate upon which the court may determine an award of reasonable attorneys fees in the absence of any countervailing evidence. The court thus awards the full amount of the attorneys fees requested as against both defendants