************************************************
The “officially released” date that appears near the
beginning of an opinion is the date the opinion will be
published in the Connecticut Law Journal or the date it
is released as a slip opinion. The operative date for the
beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports. In the event
of discrepancies between the advance release version of
an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports, the latest
version is to be considered authoritative.
The syllabus and procedural history accompanying
an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or
Connecticut Appellate Reports are copyrighted by the
Secretary of the State, State of Connecticut, and may
not be reproduced or distributed without the express
written permission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
************************************************
Page 0 CONNECTICUT LAW JOURNAL 0, 0
2 ,0 0 Conn. App. 1
Whelan v. Brestelli
BENJAMIN WHELAN ET AL. v.
TRAVIS BRESTELLI ET AL.
(AC 46449)
Bright, C. J., and Clark and Westbrook, Js.
Syllabus
The defendants appealed from the trial court’s judgment for the plaintiffs
for, inter alia, the defendants’ breach of a settlement agreement and from
its award of attorney’s fees and costs to the plaintiffs. The parties were
abutting lakefront property owners who had entered into a settlement agreement resolving various disputes regarding the properties. On appeal, the
defendants claimed, inter alia, that the court improperly found that their
installation of a new fence breached the settlement agreement, which provided for the removal of an existing fence that partially blocked the plaintiffs’
lake view and access to utility poles. Held:
The trial court properly determined that the defendants breached the settlement agreement by erecting a new fence that continued to interfere with
the plaintiffs’ reasonable and lawful use of their property, as the court’s
finding was legally correct and well supported by the record.
The trial court did not improperly determine that the defendants had erected
a ‘‘spite fence’’ in violation of the relevant statutes (§§ 52-480 and 52-570),
as the defendants failed to demonstrate that any of the court’s factual
findings were clearly erroneous and there was ample support in the record
for its determination.
The trial court did not abuse its discretion when it allowed the plaintiffs to
amend their complaint during trial, the defendants having failed to demonstrate that the court’s decision to allow the amendment caused any unreasonable delay, misled or took unfair advantage of the defendants, or confused
the issues.
The defendants could not prevail on their claim that the trial court improperly
rendered judgment for the plaintiffs on the count of the complaint alleging
a breach of the implied covenant of good faith and fair dealing, as there
was sufficient evidence before the court to support its finding that one of
the defendants intentionally entered into the settlement agreement in bad
faith and interfered with the plaintiffs’ right to the benefit of their bargain.
The trial court properly awarded the plaintiffs their reasonable attorney’s
fees and costs pursuant to the terms of the parties’ settlement agreement
and, to the extent that the defendants claimed that the court abused its
discretion regarding its determination as to the amount of attorney’s fees
it awarded or that certain categories of fees should not have been included
0, 0 CONNECTICUT LAW JOURNAL Page 1
0 Conn. App. 1 ,0 3
Whelan v. Brestelli
as part of the award, the defendants failed to provide this court with an
adequate record for review.
Argued October 17, 2024—officially released February 18, 2025
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 Middlesex, where the
defendant Christopher Brestelli et al. filed a counterclaim; thereafter, the case was tried to the court, Swienton, J.; subsequently, the court, Swienton, J., granted
the plaintiffs’ motion to amend their complaint; judgment in part for the plaintiffs on the complaint and
judgment for the plaintiffs on the counterclaim, from
which the defendant Christopher Brestelli et al.
appealed to this court; thereafter, the court, Swienton,
J., awarded attorney’s fees and costs to the plaintiffs,
and the defendant Christopher Brestelli et al. filed an
amended appeal. Affirmed.
Robert T. Rimmer, for the appellants (defendant
Christopher Brestelli et al.).
Benjamin M. Wattenmaker, with whom, on the brief,
was John M. Wolfson, for the appellees (plaintiffs).
Opinion
WESTBROOK, J. In this action alleging, inter alia, the
breach of a settlement agreement resolving disputes
between abutting lakefront property owners, the defendants Christopher Brestelli and Virginia Brestelli (Brestellis)1 appeal, following a bench trial, from the judgment of the trial court rendered against them in favor
of the plaintiffs, Benjamin Whelan and Alyson Whelan
(Whelans), and from the court’s subsequent award of
1
The Brestellis’ son, Travis Brestelli, was also named as a defendant in
the underlying action. The trial court, however, declined to address the count
directed at Travis Brestelli, and he is not a participant in the present appeal.
Page 2 CONNECTICUT LAW JOURNAL 0, 0
4 ,0 0 Conn. App. 1
Whelan v. Brestelli
costs and reasonable attorney’s fees to the Whelans.2
The Brestellis claim that the court improperly (1) determined that they breached their settlement agreement
with the Whelans; (2) found that they had erected a socalled ‘‘spite fence’’ in violation of General Statutes
§§ 52-480 and 52-570;3 (3) allowed the Whelans to amend
their complaint during trial to add an additional count
sounding in breach of the implied covenant of good
faith and fair dealing; (4) rendered judgment in favor
of the Whelans for breach of the implied covenant of
good faith and fair dealing; and (5) exceeded the scope
of the parties’ settlement agreement by awarding attorney’s fees and costs to the Whelans. We disagree and,
accordingly, affirm the judgment of the court.
The following facts, as found by the trial court and
set forth in its memorandum of decision, and procedural
2
The Brestellis also amended their appeal to challenge the court’s granting
of the Whelans’ postjudgment application for a prejudgment remedy and
motion for disclosure of assets. See Gagne v. Vaccaro, 80 Conn. App. 436,
451–54, 835 A.2d 491 (2003) (prejudgment remedy may be sought and
ordered postjudgment to protect plaintiff’s interest in judgment during pendency of appeal), cert. denied, 268 Conn. 920,
846 A.2d 881 (2004). In their
appellate brief, however, the Brestellis state that they ‘‘no longer appeal the
trial court’s entry of a prejudgment attachment nor the trial court’s asset
disclosure order as those issues are subsumed within [their] appeal of the
trial court’s attorney’s fees order.’’ Accordingly, we deem abandoned any
claims pertaining to the award of a prejudgment remedy or the asset disclosure order. See Washington Mutual Bank v. Coughlin, 168 Conn. App. 278,
280 n.3, 145 A.3d 408, cert. denied,
323 Conn. 939,
151 A.3d 387 (2016).
3
General Statutes § 52-480 provides: ‘‘An injunction may be granted against
the malicious erection, by or with the consent of an owner, lessee or person
entitled to the possession of land, of any structure upon it, intended to
annoy and injure any owner or lessee of adjacent land in respect to his use
or disposition of the same.’’
General Statutes § 52-570 provides: ‘‘An action may be maintained by the
proprietor of any land against the owner or lessee of land adjacent, who
maliciously erects any structure thereon, with intent to annoy or injure the
plaintiff in his use or disposition of his land.’’
‘‘Whereas § 52-480 provides for injunctive relief for the malicious erection
of a structure, § 52-570 provides a legal remedy therefor.’’ Errichetti v.
Botoff, 185 Conn. App. 119, 125 n.4,
196 A.3d 1199 (2018).
0, 0 CONNECTICUT LAW JOURNAL Page 3
0 Conn. App. 1 ,0 5
Whelan v. Brestelli
history are relevant to our review of the claims on
appeal. The Whelans are the owners of lakefront property at 575 Winthrop Road in Deep River (town), where
they have lived since 2010. In 2018, the Brestellis purchased the abutting lakefront property at 585 Winthrop
Road. At that time, the two properties shared a driveway. Shortly after the Brestellis moved into their property, Benjamin Whelan visited them to discuss, among
other things, access to the lake and the shared driveway.
During this discussion, the subject of the Brestellis’
hosting a wedding shower for their son, Travis Brestelli,
came up. Although Benjamin Whelan offered the Brestellis the use of his property for parking, the Brestellis
declined the offer. When the event took place, the Brestellis instructed their guests to park on their property,
but some guests parked along the shared driveway,
including up to the Whelans’ home. As the trial court
stated, this event was ‘‘the beginning of the end of the
neighborly relationship between the Whelans and the
Brestellis. Accusations were made back and forth, some
real, some imagined, and some exaggerated.’’ At some
point, Benjamin Whelan and Christopher Brestelli had
an argument that ended with Christopher Brestelli telling Benjamin Whelan to ‘‘go fuck yourself.’’
In the spring or summer of 2019, the Brestellis decided
to install a dock on their property. They sought the
necessary approvals from the appropriate town agencies and from the owner of the lake. Further, because
Benjamin Whelan had accused the Brestellis of mistreatment and misuse of the Whelans’ property, and
because the Brestellis’ access to the lake was located
directly behind the Whelans’ house, Christopher Brestelli also decided to erect a six foot high, multipanel
stockade fence so that he, his family, and their guests
could access the lake with privacy. That fence, however,
partially obstructed the Whelans’ view of the lake and
interfered with access to utility poles servicing the
Page 4 CONNECTICUT LAW JOURNAL 0, 0
6 ,0 0 Conn. App. 1
Whelan v. Brestelli
Whelans’ property. The Whelans filed a complaint with
three town agencies opposing the Brestellis’ dock. The
Brestellis hired an attorney, who sent letters to the
various agencies demanding that they be made aware of
any action to be taken in connection with their property.
The Whelans’ administrative complaint ultimately was
dismissed, but the Brestellis commenced a civil action
against the Whelans.4 The Whelans retained counsel to
defend against the action. The parties’ attorneys commenced negotiations to settle the matter, which eventually resulted in a settlement agreement that was drafted
by both counsel and entered into on October 17, 2019.5
The settlement agreement provided that the Brestellis
would withdraw their action against the Whelans. In
return, the Whelans agreed to pay the Brestellis $15,000
‘‘in full satisfaction for the [Brestellis’] property and
personal injury claims . . . .’’ The settlement agreement also required the Brestellis to transfer to the Whelans a small portion of land containing footing drainpipes, to execute a release of rights to the driveway
easement, and to construct a new, separate driveway
for access to their property. The Brestellis additionally
agreed to remove four fence panels that they had erected
along the boundary between the properties. The settlement agreement further contained provisions prohibiting the parties from directing cameras at the other’s
property and from taking any action that ‘‘impedes or
frustrates [the other party’s] reasonable and lawful use
4
The operative amended complaint in the civil action alleged intentional
and negligent infliction of emotional distress, negligent misrepresentation,
defamation, trespass, nuisance, and obstruction of an easement and sought
to quiet title. See Brestelli v. Whelan, Superior Court, judicial district of
Middlesex, Docket No. CV-XX-XXXXXXX-S (September 9, 2019). The Brestellis
withdrew the action on December 6, 2019.
5
As noted by the trial court, ‘‘[a]lthough the crux of the dispute centered
around the fence that the Brestellis had installed, which blocked direct
access to the utilities and blocked the Whelans’ view of the lake, neither
issue was specifically mentioned in the [settlement] agreement.’’
0, 0 CONNECTICUT LAW JOURNAL Page 5
0 Conn. App. 1 ,0 7
Whelan v. Brestelli
of their property’’ or that ‘‘is intended to harass, vexate,
frustrate, and/or intimidate the other party.’’ The parties
were to complete the transfer of land and the separation
of the common driveway by December 31, 2019.
At the beginning of December, 2019, Christopher Brestelli removed the four existing fence panels in accordance with the settlement agreement. A few days later,
however, he installed a new, five panel fence just forty
feet from where he had removed the original fence.6
On December 29, 2019, the Whelans’ attorney emailed
the Brestellis’ attorney, informing him that, although
the Brestellis had removed the original fence, they had
‘‘replaced it so that it sits across the [forty foot] utility
right of way [thus] blocking access to the utilities. . . .
One of the two reasons in the settlement for removing
the fence panels was to unblock the utility [right-ofway] access (the other was to remove the blocked view
of the lake).’’ Although the Brestellis later installed a
gate in the new fence so that utility companies could
access the utility poles as needed, the gate was locked
and required a special tool to open. Moreover, the new
fence continued to partially obstruct the Whelans’ view
of the lake.
In February, 2020, Benjamin Whelan notified his
attorney that an inland wetlands complaint had been
filed against the Whelans with the town and requested
his representation at a hearing before the town’s inland
wetlands commission (commission). The commission’s
enforcement officer, Mark Reyher, had sent the Whelans a letter regarding some piles of wood chips that
were located next to their driveway. The Whelans surmised, apparently correctly, that the Brestellis were
responsible for the investigation.7
6
In its memorandum of decision, the trial court implicitly credited Christopher Brestelli’s trial testimony that he knew he was going to reinstall the
fence on his property before he signed the settlement agreement.
7
In its decision, the court stated that the Whelans believed that the Brestellis ‘‘were somehow responsible for [the inland wetlands] investigation
and it is easy to see why.’’ As detailed in the court’s findings, in August,
Page 6 CONNECTICUT LAW JOURNAL 0, 0
8 ,0 0 Conn. App. 1
Whelan v. Brestelli
The commission met on February 13, 2020, at which
time the potential wetlands violation by the Whelans
was discussed. The Whelans’ attorney indicated before
the commission that the parties’ differences had been
resolved and that any enforcement action was the product of bad faith on the part of the Brestellis. He maintained that Ian Cole, who had conducted a wetlands
survey for the Brestellis, had forwarded his report to
Reyher regarding a possible wetlands violation by the
Whelans. The Whelans’ attorney also suggested that
there had been a coordinated effort against the Whelans
by the Brestellis, their attorney, Travis Brestelli, Cole,
and Reyher, the latter of whom allegedly was hostile
to the interests of Benjamin Whelan. The commission
elected to take no further action regarding the complaint.
In addition to removing the old fence and installing
a new one, the Brestellis installed four cameras along
2019, the Brestellis, who were exploring options at that time for building
their own driveway, hired a soil scientist, Ian Cole, to perform a wetlands
survey on their property. During a site visit, Cole, who was accompanied
by Travis Brestelli, identified potential wetlands on the Whelans’ property.
Cole also observed piles of wood chips next to the driveway that he believed
may have affected drainage on the driveway. Cole documented his observations and, at Travis Brestelli’s request, wrote two reports: one concerning
the Brestellis’ property and another concerning the suspected wetlands on
the Whelans’ property. ‘‘Allegedly, the purpose of the second report was to
document the poor condition of the driveway and its cause so that the
Brestellis could not be blamed. Travis Brestelli brought Cole’s report to
[Reyher] and also brought to [Reyher’s] attention the issue with a possible
wetlands violation on the Whelans’ property. Reyher then contacted Cole
regarding the wetlands on the Whelans’ property. Cole forwarded Reyher
the report, which indicated that there were piles of wood chips and debris
within a jurisdictional wetland or upland review area on the Whelans’ property. Communications went back and forth between the Brestellis, Travis
[Brestelli], their attorney and Cole, and, although the Brestellis are adamant
that they did not want to pursue a complaint against the Whelans, their
feelings and intentions toward the Whelans rang loud and clear. At the
request of the Brestellis, their attorney instructed Cole to change the date
of the report regarding the Whelans’ property from its original August, 2019,
date to January 1, 2020—one day after the completion of the terms of the
[settlement agreement].’’ (Footnote omitted.)
0, 0 CONNECTICUT LAW JOURNAL Page 7
0 Conn. App. 1 ,0 9
Whelan v. Brestelli
the new fence. The Brestellis also mounted bright yellow signs on the fence that were visible from the Whelans’ house and that contained a picture of a camera and
notice that the property was being monitored. Travis
Brestelli, who wanted to ensure that no one trespassed
on the Brestellis’ property, also flew a drone with a
camera directed at the Whelans’ property because, as
found by the court, ‘‘he felt it was pertinent to take a
picture of how close [the Whelans’] equipment was to
the Brestelli property and to show where the wood
chips (from the driveway involved in the possible wetlands violation) were being placed.’’ The Whelans interpreted the cameras and drone activity as additional
harassment by the Brestellis.8
The Brestellis maintain that, at the end of December,
2019, Benjamin Whelan made a false claim to the state’s
Department of Transportation (department) regarding
the installation of their new driveway. Specifically, Benjamin Whelan sent a letter to the department indicating
that he had standing water on his property, which, he
asserted, had occurred only after the Brestellis began
installing their driveway. On three separate occasions,
the department sent someone to inspect the properties,
but it found no standing water on the Whelans’ property
and took no additional action with respect to the installation of the Brestellis’ new driveway.
On June 1, 2020, the Whelans commenced the present
action against the Brestellis. Count one sounded in breach
of contract. In particular, the Whelans alleged that the
8
The Brestellis, for their part, took issue with two cameras located on
the Whelans’ property that ostensibly were directed toward the Brestellis’
property. One of these cameras was attached to a tree and pointed down
the shared driveway (driveway camera), and the other was attached to a
tree located near the lake (lake camera). As found by the court, the Whelans
had installed the driveway camera in 2010 after there had been a burglary
in their barn, but it was no longer operational. The lake camera was an
inoperable ‘‘dummy’’ camera.
Page 8 CONNECTICUT LAW JOURNAL 0, 0
10 ,0 0 Conn. App. 1
Whelan v. Brestelli
Brestellis had breached the parties’ settlement agreement by moving, rather than removing, the panel fence;
directing cameras at the Whelans’ property; and
allowing Travis Brestelli to install those cameras and
to fly a drone with a camera to surveil the Whelans’
property. Count two alleged that the Brestellis maliciously erected a structure in violation of §§ 52-480 and
52-570. Count three sounded in nuisance against Travis
Brestelli only.
The Brestellis filed an answer, special defenses, and
a counterclaim in which they asserted that the Whelans
had breached the settlement agreement, including by
filing the present action. The Whelans responded to the
Brestellis’ counterclaim, asserting a variety of special
defenses.
The matter was tried before the court, Swienton, J.,
on October 4, 5, 11, 12 and 13, 2022. On the last day of
trial, the Whelans filed a motion for permission to
amend the complaint to conform to the evidence presented at trial. The accompanying proposed amended
complaint included a fourth count that alleged a breach
by Christopher Brestelli of the implied covenant of good
faith and fair dealing. The Brestellis filed an objection
to the motion to amend in which they argued that the
request was untimely, unduly prejudicial, and, contrary
to the Whelans’ assertion, did not conform to the evidence. The court granted the motion to amend on
November 8, 2022, overruling the Brestellis’ objections.
The Brestellis filed an amended answer that included
a new special defense asserting that count four was
barred by the applicable statute of limitations. The parties were granted an opportunity to file simultaneous
posttrial briefs, which they submitted on January 6,
2023.
The court filed its memorandum of decision on March
15, 2023, followed by a corrected decision on March
0, 0 CONNECTICUT LAW JOURNAL Page 9
0 Conn. App. 1 ,0 11
Whelan v. Brestelli
23, 2023, that fixed a typographical error. With respect
to count one, the court concluded that the Brestellis
breached the settlement agreement when they constructed a new fence a mere forty feet from the fence
that they had agreed to remove. The court also concluded that the installation of cameras along the new
fence constituted a further breach of the agreement’s
provision that directed the parties ‘‘not to install cameras directed at the other’s property.’’ The court found
that the Whelans had proven damages because the new
fence was unsightly and obstructed their view of the
lake, thereby diminishing the value of the Whelans’
property, and because the purpose of the settlement
agreement, which included the Whelans’ paying $15,000
to the Brestellis for the removal of the fence, had been
frustrated. With respect to count two, the court agreed
with the Whelans that the new fence constituted a ‘‘spite
fence’’ and was in violation of §§ 52-480 and 52-570
because it served no legitimate purpose and its construction was motivated by malice toward the Whelans.
On count three, which sounded in nuisance against
Travis Brestelli only, the court stated that ‘‘[t]he court
will not address this count’’ because ‘‘[n]o allegations
in the complaint addressed the spite fence as a nuisance
as the Whelans now argue in their brief.’’9 With respect
to count four, the court found that Christopher Brestelli
breached the implied covenant of good faith and fair
9
Because the court’s decision disposed of all counts of the complaint
brought against the Brestellis, it constitutes an appealable final judgment
regardless of the court’s disposition of count three. See Practice Book § 61-
3. In any event, we construe the court’s statement regarding count three as
having effectively rendered judgment on that count against the Whelans.
See Meribear Productions, Inc. v. Frank, 328 Conn. 709, 719,
183 A.3d 1164
(2018) (‘‘we will not elevate form over substance when it is apparent from
the memorandum of decision [whether the plaintiff prevailed on each count]’’
(internal quotation marks omitted)); Avery v. Medina, 174 Conn. App. 507,
517,
163 A.3d 1271 (‘‘construction of [an order or] judgment is a question
of law for the court’’ and ‘‘determinative factor is the intention of the court
as gathered from all parts of the [order or] judgment’’ (internal quotation
marks omitted)), cert. denied, 327 Conn. 927,
171 A.3d 61 (2017).
Page 10 CONNECTICUT LAW JOURNAL 0, 0
12 ,0 0 Conn. App. 1
Whelan v. Brestelli
dealing because he entered into the settlement agreement in bad faith intending to erect a second fence only
feet from where he had agreed to remove the original
fence, and he waited until the agreement was completed
before causing the filing of the inland wetlands complaint against the Whelans.10 Finally, the court rejected
all of the Brestellis’ special defenses and ruled in favor
of the Whelans on the Brestellis’ counterclaim, concluding that ‘‘[t]he Brestellis have not adduced sufficient
evidence to substantiate any of [their] claims that the
Whelans have breached the [settlement] agreement.’’
The court awarded the following damages: (1) ‘‘a
prohibitory injunction against the Brestellis to cease
all activity [that] violates the terms of the settlement
agreement and any camera surveillance on the Whelans’
property pursuant to General Statutes § 52-471’’;11 (2)
‘‘a mandatory injunction [against the Brestellis] pursuant to . . . §§ 52-570 and 52-480 to remove the fence
panels [that] impede the Whelans’ view to [the lake],
or replace them with wire fence sections similar to the
existing wire fence, and to remove any fence panel
[that] interferes with access to the utility right-of-way
. . . [with removal] completed within sixty day[s] of
the date of this decision’’ (footnote omitted); (3) ‘‘money
damages in the amount of $1’’; and (4) ‘‘[a]s provided
in the settlement agreement . . . reasonable costs of
this action [to the Whelans] including attorney’s fees,
expert fees and other costs of this action.’’ The court
ordered the Whelans to submit a claim for attorney’s
fees and other costs of this action within thirty days
10
Although the court’s decision states that it ‘‘finds that the Brestellis
breached the implied covenant of good faith and fair dealing,’’ count four
of the complaint as amended was directed only against Christopher Brestelli,
and, thus, the court’s judgment on that count necessarily was limited to him.
11
General Statutes § 52-471 provides in relevant part: ‘‘Any judge of any
court of equitable jurisdiction may, on motion, grant and enforce a writ of
injunction, according to the course of proceedings in equity, in any action
for equitable relief when the relief is properly demandable . . . .’’
0, 0 CONNECTICUT LAW JOURNAL Page 11
0 Conn. App. 1 ,0 13
Whelan v. Brestelli
and indicated that it would hold a hearing on such
claims if requested by the Brestellis within thirty days
following the submission of the claims.
The Brestellis filed a motion to reargue and reconsider on April 4, 2023, which the court denied the following day. On April 10, 2023, the Whelans filed an affidavit
of attorney’s fees and costs totaling $156,138.12. The
next day, the Whelans also filed an application for a
prejudgment remedy and a motion for disclosure of
assets.
On April 21, 2023, the Brestellis filed the present
appeal challenging the court’s judgment on the Whelans’
complaint and the Brestellis’ counterclaim. The Brestellis subsequently filed a timely request for a hearing
on the Whelans’ claim for attorney’s fees and costs. It
also filed an opposition to the Whelans’ application for
a prejudgment remedy.
On May 31, 2023, the court conducted a hearing on all
outstanding motions, following which it issued orders
awarding the Whelans a total award of attorney’s fees
and costs of $153,578.12 and granting the motion for
disclosure of assets. On June 6, 2023, the court issued
an order granting the Whelans’ application for a prejudgment remedy in the amount of $178,000 and authorizing
the Whelans to garnish or attach the Brestellis’ assets.
The Brestellis filed amended appeals challenging the
award of attorney’s fees and costs, the granting of the
motion for disclosure of assets, and the granting of the
application for a prejudgment remedy. See footnote 2
of this opinion. Additional facts and procedural history
will be set forth as necessary.
I
The Brestellis first claim that the court improperly
determined that they breached the parties’ settlement
agreement. According to the Brestellis, the plain and
Page 12 CONNECTICUT LAW JOURNAL 0, 0
14 ,0 0 Conn. App. 1
Whelan v. Brestelli
unambiguous terms of the settlement agreement only
required them to remove the then existing fence, which
they did, and did not expressly preclude them, following
its removal, from relocating the fence ‘‘to an area deeper
into their own property.’’ The Brestellis further take
issue with the court’s determination that, because the
new fence obstructed the Whelans’ lake view and
restricted access to utility poles, the Brestellis also
breached that part of the agreement that forbade the
parties from interfering with, impeding, or frustrating
the other parties’ ‘‘reasonable and lawful use of their
property.’’ The Brestellis argue that any impairment of
the Whelans’ lake view and utility access could not
serve as a basis for finding a breach of that provision
of the settlement agreement because, as found by the
court, neither the lake view nor utility access is expressly
mentioned in the settlement agreement. Finally, the
Brestellis argue that, to the extent the court found that
they had breached the settlement agreement by installing cameras directed at the Whelans’ property, the court
failed to find that the Whelans had proven any damages
directly related to the cameras, and proof of damages
is an essential element of any breach of contract claim.
The Whelans dispute each of the Brestellis’ arguments.
For the reasons that follow, we conclude that the court
properly determined that the Brestellis breached the
settlement agreement by interfering with the Whelans’
reasonable and lawful use of their property. Accordingly, because we affirm the court’s determination that
the Brestellis breached the settlement agreement on
that basis, it is unnecessary to reach the Brestellis’ other
arguments.12
12
Given the nature of the relief awarded and, in particular, because the
court did not award separate and distinct relief on the basis of the Brestellis’
individual breaches of the settlement agreement, we may affirm the court’s
judgment in favor of the Whelans with respect to the breach of contract count
if any one of the court’s findings of a breach of the settlement agreement
is supported by the record and there is evidence that the relief awarded by
the court addresses a harm caused by the breach.
0, 0 CONNECTICUT LAW JOURNAL Page 13
0 Conn. App. 1 ,0 15
Whelan v. Brestelli
We begin our discussion with relevant principles of
law, including our standard of review. It is axiomatic
that an agreement to end a lawsuit is a binding and
enforceable contract between the parties. See Krasko
v. Konkos, 224 Conn. App. 589, 604–605,
314 A.3d 34
(2024); Vance v. Tassmer, 128 Conn. App. 101, 110,
16
A.3d 782 (2011), appeal dismissed,
307 Conn. 635,
59
A.3d 170 (2013). ‘‘The elements of a breach of contract
claim are the formation of an agreement, performance
by one party, breach of the agreement by the other
party, and damages. . . . The interpretation of definitive contract language is a question of law over which
our review is plenary. . . . By contrast, the trial court’s
factual findings as to whether and by whom a contract
has been breached are subject to the clearly erroneous
standard of review and, if supported by evidence in the
record, are not to be disturbed on appeal.’’ (Internal
quotation marks omitted.) AGW Sono Partners, LLC v.
Downtown Soho, LLC, 343 Conn. 309, 322–23,
273 A.3d
186 (2022). ‘‘A finding of fact is clearly erroneous when
there is no evidence in the record to support it . . .
or when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.’’ (Internal quotation marks omitted.)
Efthimiou v. Smith, 268 Conn. 487, 493–94,
846 A.2d
216 (2004).
‘‘A contract must be construed to effectuate the intent
of the parties, which is determined from the language
used interpreted in the light of the situation of the
parties and the circumstances connected with the
transaction. . . . [T]he intent of the parties is to be
ascertained by a fair and reasonable construction of
the written words and . . . the language used must be
accorded its common, natural, and ordinary meaning
and usage where it can be sensibly applied to the subject
matter of the contract. . . . Where the language of the
Page 14 CONNECTICUT LAW JOURNAL 0, 0
16 ,0 0 Conn. App. 1
Whelan v. Brestelli
contract is clear and unambiguous, the contract is to
be given effect according to its terms. A court will not
torture words to import ambiguity where the ordinary
meaning leaves no room for ambiguity . . . .’’ (Emphasis added; internal quotation marks omitted.) Allstate
Life Ins. Co. v. BFA Ltd. Partnership, 287 Conn. 307,
313,
948 A.2d 318 (2008). In other words, ‘‘[i]n ascertaining intent, we consider not only the language used in
the contract but also the circumstances surrounding
the making of the contract, the motives of the parties
and the purposes which they sought to accomplish.’’
(Internal quotation marks omitted.) Barnard v. Barnard, 214 Conn. 99, 109–10,
570 A.2d 690 (1990).
Here, the court found that the Brestellis breached
§ F (v) of the settlement agreement when they erected
the new fence on their property because, like the original fence that they had removed, the new fence
obstructed the Whelans’ lake view and restricted access
to their utility pole, which ‘‘interfered with the Whelans’
reasonable and lawful use of their property . . . .’’ We
agree with the Whelans that the court’s finding is legally
correct and well supported by the record, and, thus,
should not be disturbed by this court.
Subsection (v) of § F of the parties’ settlement agreement states that ‘‘[t]he [p]arties agree that no party to
this agreement, their agents, employees, or guests shall
interfere with another party’s reasonable and lawful
use of their property. Nor shall any party to this agreement take any action that impedes or frustrates another’s reasonable and lawful use of their property.’’ Neither party claims that the language of this subsection
is unclear or ambiguous.
With respect to this first claim, the Brestellis do not
challenge the court’s factual finding that the new fence,
like the previous fence, partly obstructed the Whelans’
view of the lake and restricted access to the Whelans’
0, 0 CONNECTICUT LAW JOURNAL Page 15
0 Conn. App. 1 ,0 17
Whelan v. Brestelli
utility pole. Rather, the sole argument advanced by the
Brestellis against the court’s determination that the
Brestellis breached § F (v) of the settlement agreement
is that, because the Whelans’ lake view and utility pole
access are not expressly mentioned in the settlement
agreement, they cannot serve as a proper basis for finding that the Brestellis had interfered with the Whelans’
reasonable and lawful use of their property. This argument lacks merit.
The agreement does not define, limit, or qualify what
comprises a ‘‘reasonable and lawful use’’ of property
or what would constitute an act that ‘‘impedes or frustrates’’ such a use. Accordingly, we agree with the Whelans that the plain meaning of this provision is that
the parties agreed not to take any future action that
interferes with any reasonable and lawful use by the
other party of their property. The Brestellis do not direct
our attention to any other language in the agreement
that is contrary to this construction, nor do they cite
to any case law that would support their argument that
the parties intended the agreement to protect only those
reasonable and lawful uses expressly referenced in the
agreement. It is clear from the circumstances surrounding the making of the settlement agreement that
one purpose of the agreement was to resolve the parties’
ongoing disputes, which necessarily included the Whelans’ complaints regarding the Brestellis’ original fence
and its effect on the Whelans’ use and enjoyment of
their property.13
We conclude that the court properly determined that,
by erecting a new fence that continued to interfere with
the Whelans’ reasonable use and enjoyment of their
13
As the trial court queried in its decision: ‘‘After all the disagreements,
complaints, lawsuits, etc., did the Brestellis even think that the erection of
this fence would be acceptable under the terms of the [settlement] agreement? Or did they even care? Or, as the court concludes, was it just erected
out of spite for the Whelans?’’
Page 16 CONNECTICUT LAW JOURNAL 0, 0
18 ,0 0 Conn. App. 1
Whelan v. Brestelli
property, the Brestellis breached § F (v) of the settlement agreement. Accordingly, we reject the Brestellis’
claim that the court improperly rendered judgment for
the Whelans on the breach of contract count.
II
The Brestellis next claim that the court improperly
determined that they had erected a ‘‘spite fence’’ in
violation of §§ 52-480 and 52-570. In support of this
claim, the Brestellis argue that the record contains no
support for the court’s findings as to any asserted harm
caused by the new fence. Rather, according to the Brestellis, the record demonstrates that they had ‘‘logical,
legitimate and necessary reasons’’ for constructing the
new fence. We disagree.
‘‘The Connecticut progenitor of what have commonly
been called the spite fence cases appears to be Whitlock
v. Uhle, 75 Conn. 423,
53 A. 891 (1903). . . . In [Whitlock], our Supreme Court construed and applied the
predecessors to . . . §§ 52-480 and 52-570 and set forth
the elements necessary to state a cause of action under
§§ 52-480 and 52-570. The court held that the essential
elements are: (1) a structure erected on the [defendant’s] land; (2) a malicious erection of the structure;
(3) the intention to injure the enjoyment of the adjacent
landowner’s land by the erection of the structure; (4)
an impairment of the value of adjacent land because
of the structure; (5) the structure is useless to the defendant; and (6) the enjoyment of the adjacent landowner’s
land is in fact impaired. . . . The plaintiff bears the
burden of demonstrating each of these elements by a
fair preponderance of the evidence.’’ (Citation omitted;
footnote omitted; internal quotation marks omitted.)
Errichetti v. Botoff, 185 Conn. App. 119, 125–26,
196
A.3d 1199 (2018).
In their appellate brief, the Brestellis’ arguments
against the court’s determination that they had erected a
0, 0 CONNECTICUT LAW JOURNAL Page 17
0 Conn. App. 1 ,0 19
Whelan v. Brestelli
‘‘spite fence’’ focus exclusively on whether the Whelans
showed that the new fence impaired the value of their
property or their enjoyment of it, essentially attacking
the court’s findings under the fourth and sixth elements
of the Whitlock test. First, the Brestellis argue that the
court’s finding that the fence obstructed the Whelans’
view of the lake ‘‘is not supported by the record.’’ Second, they argue that the only loss the Whelans suffered
as a result of the new fence was a partial impairment
of their lake view. Third, they challenge the court’s
finding that the new fence was installed across what
previously was an ‘‘unspoiled’’ wooded area. Fourth,
they contend that no evidence was presented to substantiate the finding that the new fence impacted access
to the Whelans’ utilities. Because the Brestellis challenge the court’s factual findings, we employ the clearly
erroneous standard of review. See, e.g., Chase & Chase,
LLC v. Waterbury Realty, LLC, 138 Conn. App. 289,
302,
50 A.3d 968 (2012). We reject each of the Brestellis’
arguments.
The Brestellis’ first argument fails because, contrary
to their assertion, there is evidence in the record to
support the court’s finding that the new fence impacted
the Whelans’ view of the lake. For example, the attorney
who was hired by the Whelans in 2019 to defend against
the Brestellis’ lawsuit, Keith Ainsworth, testified that
the original fence ‘‘obviously blocked a good portion
of [the Whelans’] view . . . from their house to the
lake.’’ When asked whether the new fence blocked the
Whelans’ view of the lake, he answered, ‘‘Yes.’’ There
was corroborating evidence in the form of communications between Ainsworth and the Brestellis’ attorney
in which Ainsworth also indicated that the new fence
obstructed the Whelans’ view of the lake. Although Benjamin Whelan testified that the fence did not ‘‘completely obscure’’ the Whelans’ view of the lake, it is clear
from his testimony that there certainly was a partial
Page 18 CONNECTICUT LAW JOURNAL 0, 0
20 ,0 0 Conn. App. 1
Whelan v. Brestelli
obstruction. We agree with the court that ‘‘[w]hen someone buys lakefront property, one of their main concerns
centers around the view.’’ (Internal quotation marks
omitted.) Consequently, the Whelans may be damaged
by even a partial obstruction of that view, not only
because of its effect on their enjoyment of the property
but because of a related negative effect on the property’s value.
With respect to the second and third arguments, the
Brestellis have offered no compelling reason why the
court’s finding of nominal damages and injunctive relief
could not be sustained solely on the basis of the partial
obstruction of the Whelans’ lake view. Nevertheless,
the partial obstruction of the Whelans’ view is not the
only evidence of loss to the Whelans. The court found
that, as viewed from the Whelans’ property, the fence
itself was unsightly in that it had yellow signs on it
‘‘which no one would want to see out of their picture
window.’’ Moreover, even if we agree with the Brestellis’
contention that the court’s description of the location
of the fence as ‘‘unspoiled’’ is contradicted by other
evidence in the record, including that the same area
contains, among other things, utility poles, we are convinced that any error in the court’s description is harmless and does not undermine the court’s overall findings
regarding the negative impact of the new fence on the
view from the Whelans’ property.14
Finally, we reject the argument that there was a lack
of evidence to support the court’s finding that the new
fence restricted access to the Whelans’ utility pole. Ainsworth testified at trial that the new fence blocked utility
workers’ access to the Whelans’ utility pole to conduct
repairs and that he had notified the Brestellis of this
fact via email and subsequent letter, copies of which
14
The Brestellis do not challenge the court’s finding that the Whelans’
house ‘‘is located in such a way as to enjoy the view of the lake and its
natural surroundings.’’
0, 0 CONNECTICUT LAW JOURNAL Page 19
0 Conn. App. 1 ,0 21
Whelan v. Brestelli
were submitted into evidence. Although the Brestellis
direct our attention to contradictory testimony by Christopher Brestelli that the new fence did not interfere
with the Whelans’ utility access, it is not the role of
this court on appeal to reweigh the evidence or pass
on the credibility of witnesses. It is the role of the trier
of fact, in this case the court, to weigh contradictory
evidence and to come to a reasoned conclusion as to
the facts. See Frank v. Dept. of Children & Families,
312 Conn. 393, 412,
94 A.3d 588 (2014) (‘‘it is the exclusive province of the trier of fact to make determinations
of credibility, crediting some, all, or none of a given
witness’ testimony’’ (internal quotation marks omitted)); Wiblyi v. McDonald’s Corp., 168 Conn. App. 77,
89 n.14, 144 A.3d 1075 (2016) (factual findings were not
inherently flawed merely because contradictory evidence was presented, as ‘‘[i]t is the duty of the trier of
fact to weigh such evidence and come to a conclusion
on the basis thereof’’). The court’s finding that the new
fence blocked the Whelans’ utility access was not
clearly erroneous.
Having thoroughly reviewed the record, briefs, and
arguments of the parties, we conclude that the Brestellis
have failed to demonstrate that any of the court’s factual
findings were clearly erroneous, and there is ample
support in the record for the court’s determination that
the Brestellis erected a ‘‘spite fence’’ in violation of
§§ 52-480 and 52-570. We, therefore, reject the Brestellis’
claim to the contrary.
III
The Brestellis’ third claim is that the court improperly
allowed the Whelans to amend their complaint at trial
to add an additional count against Christopher Brestelli
alleging a breach of the implied covenant of good faith
and fair dealing. The Whelans counter that the Brestellis
have failed to demonstrate how they were prejudiced
Page 20 CONNECTICUT LAW JOURNAL 0, 0
22 ,0 0 Conn. App. 1
Whelan v. Brestelli
by the amendment or that the court abused its considerable discretion to allow amendments to pleadings during or after trial in order to conform with the evidence
presented. We agree with the Whelans.
The following additional facts are relevant to our
review of this claim. During his testimony on the fourth
day of trial, Christopher Brestelli stated that, at the time
that he entered into the settlement agreement with the
Whelans, pursuant to which he agreed to remove the
original fence from his property, he intended to put up
a new fence in the same general area.15 The Whelans
viewed this testimony as effectively an admission by
Christopher Brestelli that he had entered into the settlement agreement in bad faith, and the Whelans filed a
motion with the court soon after his testimony seeking
to amend the operative complaint to conform with this
new evidence.
‘‘Whether to allow an amendment is a matter left to
the sound discretion of the trial court. [An appellate]
court will not disturb a trial court’s ruling on a proposed
amendment unless there has been a clear abuse of that
discretion. . . . It is the [defendant’s] burden . . . to
demonstrate that the trial court clearly abused its discretion. . . . A trial court may allow, in its discretion,
an amendment to pleadings before, during, or after trial
to conform to the proof. . . . Factors to be considered
15
The following exchange occurred between the Whelans’ counsel and
Christopher Brestelli regarding his intent to put up a new fence:
‘‘Q. Earlier . . . when you were on the stand . . . the last time, you said
before you signed the settlement agreement . . . you decided to put up the
second fence. Isn’t that true?
‘‘A. Yes. . . .
‘‘Q. [Y]ou didn’t tell Ben[jamin] Whelan that you were going to reinstall
the fence after the settlement agreement was signed, did you?
‘‘A. The settlement agreement said that there would be no disruption of
doing anything on your own property that was legal. And that’s what I did.
‘‘Q. But you didn’t . . . tell Ben[jamin] Whalen that after you signed the
settlement agreement that you were going to put up the new fence, did you?
‘‘A. No, I didn’t.’’
0, 0 CONNECTICUT LAW JOURNAL Page 21
0 Conn. App. 1 ,0 23
Whelan v. Brestelli
in passing on a motion to amend are the length of the
delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. . . .
The essential tests are whether the ruling of the court
will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly
delay a trial.’’ (Internal quotation marks omitted.) KDM
Services, LLC v. DRVN Enterprises, Inc., 211 Conn.
App. 135, 140,
271 A.3d 1103 (2022). In considering
whether a trial court properly has exercised its discretion with respect to a request to amend a complaint,
this court has stated that, ‘‘[i]n an amended complaint,
[i]t is proper to amplify or expand what has already
been alleged in support of a cause of action, provided
the identity of the cause of action remains substantially
the same, but where an entirely new and different factual situation is presented, a new and different cause
of action is stated. . . . A cause of action is that single
group of facts which is claimed to have brought about
an unlawful injury to the plaintiff and which entitles
the plaintiff to relief.’’ (Internal quotation marks omitted.) Id., 141.
Here, the Whelans’ amendment of the complaint to
include a separate count asserting a breach of the
implied covenant of good faith and fair dealing did not
require consideration of a different factual situation.
Rather, the factual predicate for the new count related
directly to the other allegations of breach of the settlement agreement predicated on the Brestellis’ having
erected a new fence shortly after removing the old
one and arose out of the trial testimony of Christopher
Brestelli, in which he indicated that he had signed the
settlement agreement knowing that he intended to put
up a new fence on their property despite agreeing to
remove the similar, existing fence. Because this evidence did not arise until trial, we cannot conclude that
the Whelans were negligent by not raising the breach
Page 22 CONNECTICUT LAW JOURNAL 0, 0
24 ,0 0 Conn. App. 1
Whelan v. Brestelli
of the implied covenant of good faith and fair dealing
in their original complaint either as a separate count
or as an aspect of the existing breach of contract count,
nor did the Whelans delay seeking to amend the complaint on the basis of this new evidence. The Brestellis,
moreover, have failed to show that they were unduly
prejudiced by the amendment. The amendment did not
inject into the case anything that required the Brestellis
to prove additional facts nor were they precluded from
defending against the new allegations. If the Brestellis
believed it was necessary to present additional evidence
in response to the new count, they could have sought
to open the evidence after the court granted the amendment. They did not do so. In other words, on the record
before us, the Brestellis have failed to demonstrate that
the court’s decision to allow the amendment caused any
unreasonable delay, misled or took unfair advantage of
the Brestellis, or confused the issues. See, e.g., Moore
v. Sergi, 38 Conn. App. 829, 836–37,
664 A.2d 795 (1995)
(upholding amendment of counterclaim following trial).
In short, we are not convinced that the court abused its
discretion in allowing the amendment of the complaint
and, accordingly, reject the Brestellis’ claim.
IV
The Brestellis also relatedly claim that, even if the
court properly allowed the amendment to the complaint, it improperly rendered judgment in favor of the
Whelans on the ground that Christopher Brestelli
breached the implied covenant of good faith and fair
dealing. We disagree.
‘‘Every contract imposes upon each party a duty of
good faith and fair dealing in its performance and its
enforcement.’’ 2 Restatement (Second), Contracts
§ 205, p. 99 (1981). ‘‘In other words, every contract
carries an implied duty requiring that neither party do
anything that will injure the right of the other to receive
0, 0 CONNECTICUT LAW JOURNAL Page 23
0 Conn. App. 1 ,0 25
Whelan v. Brestelli
the benefits of the agreement. . . . To constitute a
breach of [the implied covenant of good faith and fair
dealing], the acts by which a defendant allegedly
impedes the plaintiff’s right to receive benefits that he or
she reasonably expected to receive under the contract
must have been taken in bad faith. . . . [B]ad faith may
be overt or may consist of inaction, and it may include
evasion of the spirit of the bargain . . . .’’ (Citations
omitted; emphasis added; internal quotation marks
omitted.) Geysen v. Securitas Security Services USA,
Inc., 322 Conn. 385, 399–400,
142 A.3d 227 (2016); see
also 23 R. Lord, Williston on Contracts (4th Ed. 2018)
§ 63:22, p. 554 (‘‘party who evades the spirit of the
contract . . . may be liable for breach of the implied
covenant of good faith and fair dealing’’). Accordingly,
a plaintiff may prevail on a claim for breach of an
implied covenant of good faith and fair dealing if the
plaintiff can show that a defendant engaged in conduct
that, while perhaps not technically breaching any
express provision of the parties’ contract, nonetheless
deprived the plaintiff of an intended benefit of the bargain. There was sufficient evidence before the court in
the present case to support its finding that Christopher
Brestelli breached his duty to comply with his obligation
to act in good faith under the settlement agreement.
The Brestellis would have us conclude that because
the only action they expressly agreed to take under
the settlement agreement regarding their fence was to
remove the fence, they were not precluded from erecting a new fence elsewhere on their property. This argument ignores, however, that the clear purpose of the
settlement agreement was to resolve the dispute between
the parties, which included the Whelans’ claim that the
fence the Brestellis had erected near the Whelans’ home
interfered with their view of the lake and access to
their utilities. Thus, one of the benefits to the Whelans
Page 24 CONNECTICUT LAW JOURNAL 0, 0
26 ,0 0 Conn. App. 1
Whelan v. Brestelli
of entering into the settlement agreement, as understood by both the Whelans and the Brestellis, was the
Brestellis’ promise to remove the offending fence and,
thus, to restore their view and utility access. The evidence fully supports the trial court’s conclusion that
Christopher Brestelli, by agreeing to remove the fence
while admittingly intending to erect a new fence with
the same offensive characteristics, intentionally entered
into the settlement agreement in bad faith and interfered with the Whelans’ right to a benefit of their bargain. His actions and admitted intention undoubtedly
support the court’s determination that Christopher Brestelli breached the implied covenant of good faith and
fair dealing.
V
Finally, the Brestellis claim that the trial court improperly exceeded the scope of the parties’ settlement agreement by awarding the Whelans their reasonable attorney’s fees and costs with respect to matters that fell
‘‘outside the four corners of the settlement agreement.’’
The Whelans counter that, under the plain language
of the settlement agreement, they are entitled to the
attorney’s fees and costs awarded by the court. We
agree with the Whelans.
The relevant legal principles and standard of review
governing claims challenging an award of attorney’s
fees are well settled. ‘‘Connecticut adheres to the socalled American rule, which prohibits the award of
[attorney’s fees and costs] to the prevailing party unless
such award is premised on statutory directives or is
pursuant to contract.’’ (Emphasis added; internal quotation marks omitted.) Jacques v. Jacques, 223 Conn.
App. 501, 507,
309 A.3d 372 (2024). ‘‘Whether any award
is to be made and the amount thereof lie within the
discretion of the trial court . . . . Because the trial
0, 0 CONNECTICUT LAW JOURNAL Page 25
0 Conn. App. 1 ,0 27
Whelan v. Brestelli
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.’’ (Emphasis omitted; internal quotation marks omitted.) WiFiLand, LLP v. Hudson, 153 Conn. App. 87,
101–102, 100 A.3d 450 (2014). ‘‘In reviewing a claim that
attorney’s fees are authorized by contract, we apply
the well established principle that [a] contract must be
construed to effectuate the intent of the parties, which
is determined from [its] language . . . interpreted in
the light of the situation of the parties and the circumstances connected with the transaction.’’ (Internal quotation marks omitted.) Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services,
LLC, 308 Conn. 312, 327,
63 A.3d 896 (2013).
In the present matter, the parties’ settlement agreement contains a provision expressly authorizing an
award of attorney’s fees and costs to the prevailing
party in any action to enforce the settlement agreement.
Specifically, § G of the settlement agreement, titled
‘‘Enforcement,’’ provides in relevant part: ‘‘The nonprevailing party agrees to reimburse the prevailing party
for all reasonable costs incurred by the prevailing party
in enforcing [the settlement agreement] or in taking
reasonable measures to remedy or abate any violation
hereof, including without limitation the costs of suit
and reasonable expert and attorneys’ fees. . . .’’
The record before us supports the court’s determination that the Whelans were the prevailing party in the
underlying litigation seeking to enforce provisions of
the settlement agreement. Although the Brestellis argue
that the Whelans did not prevail with respect to every
aspect of the underlying litigation, noting, for example,
that the court did not rule in their favor on the nuisance
count directed at Travis Brestelli, they were not required
to do so in order to recover under the agreement. This
Page 26 CONNECTICUT LAW JOURNAL 0, 0
28 ,0 0 Conn. App. 1
Whelan v. Brestelli
court previously has held that a successful plaintiff is
properly regarded as the prevailing party if ‘‘there is
success on the merits of the case although not to the
extent of the plaintiff’s original contention, or where
the plaintiff is not awarded the entire claim. . . . [I]f
the prevailing party obtains judgment on even a fraction
of the claims advanced, or is awarded only nominal
damages, the party may nevertheless be regarded as
the prevailing party and thus entitled to an award of
costs.’’ (Internal quotation marks omitted.) Premier
Capital, Inc. v. Grossman, 92 Conn. App. 652, 661,
887
A.2d 887 (2005). Thus, the court properly awarded to
the Whelans their reasonable attorney’s fees pursuant
to the terms of the parties’ settlement agreement.
‘‘It is well settled that the reasonableness of attorney’s
fees and costs must be proven by an appropriate evidentiary showing. . . . An evidentiary hearing is only one
of many methods to satisfy this requirement. . . . A
trial court may assess the reasonableness of the fees
requested using any number of factors, including its
general knowledge of the case, sworn affidavits or other
testimony, itemized bills, and the like.’’ (Citations omitted; emphasis omitted; internal quotation marks omitted.) Id., 660. As in Premier Capital, Inc., to the extent
that the Brestellis also claim that the court abused its
discretion regarding its determination as to the amount
of attorney’s fees it awarded or that certain categories
of fees should not have been included as part of the
award, our review of that aspect of the Brestellis’ claim
is limited due to the inadequacy of the record provided.
In the present case, the court did not hold a hearing
and did not file a memorandum of decision that set
forth the factual basis for its order awarding attorney’s
fees and costs to the Whelans. The court did not address
any of the arguments raised by the Brestellis in their
opposition. The totality of the court’s analysis in support of its order was as follows: ‘‘The court having
0, 0 CONNECTICUT LAW JOURNAL Page 27
0 Conn. App. 1 ,0 29
Whelan v. Brestelli
reviewed the affidavits, invoices, and considering the
arguments of counsel together with the objection filed
by the [Brestellis] in this matter awards attorney’s fees
in the amount of $147,801.96, plus costs in the amount
of $5776.16 for a total award of attorney’s fees and costs
of $153,578.12.’’ We do not know from this statement
which factual findings, if any, formed the basis of the
court’s award. Without a more fulsome statement
regarding the factual basis for the court’s award, our
consideration of whether the court abused its considerable discretion in crafting an award of attorney’s fees
is hampered. The Brestellis had the obligation to provide this court with an adequate record for review. We
cannot consider the matter de novo, engage in pure
speculation as to the basis of the court’s award, or
substitute our opinion for that of the trial court. On the
basis of the record provided, we cannot conclude that
the trial court has clearly abused its discretion.
The judgment is affirmed.
In this opinion the other judges concurred.
