Opinion
No. CV 05-4018721-S
May 6, 2011
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR COUNSEL FEES
This court having determined plaintiff is entitled to counsel fees for having proven its counts of fraud and violation of CUTPA, plaintiff now moves the court award it counsel fees in the amount of $125,924.95 plus costs of $5,975.02 for a total of $131,899.97.
CUTPA at § 42-110g(d) provides a prevailing plaintiff is entitled to "reasonable attorneys fees based on work reasonably performed by an attorney and not on the amount of the recovery." Cases determining attorneys fees under CUTPA indicate that the awarding and the amount of attorneys fees are within the sole discretion of the trial court. Staele v. Michael's Garage, Inc., 35 Conn.App. 455, 460-61 (1994).
In Steiger v. J.S. Builders, Inc., 39 Conn.App. 32, 38-39 (1995), the Appellate Court indicated that it adopts the guidelines for awarding attorneys fees expressed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 715-19 (5th Cir. 1974). Among those factors specifically relevant to this case are: time and labor required, the novelty and difficulty of the question; the skill requisite to perform the legal services properly, the customary fee for similar work in the community, the amount involved and the result obtained.
Plaintiff claimed to have expended 733.65 hours on this case at the rate of $156 to $195 an hour. That rate is reasonable and consistent with fees for similar work in the community.
In this case, plaintiff sought to recover the amount due on a judgment alleging counts of unjust enrichment, constructive trust, violation of CUTPA, fraudulent transfer, piercing the corporate veil, and fraud. These counts do not present particularly novel or difficult questions of law. However, plaintiff's counsel claims that much of their time was spent in preparing for trial and trying the case because they had to prove fraud by clear and convincing evidence. But early on in the case, defendant admitted and in an examination of judgment debtor testified to the elements of fraud central to plaintiff's case, namely, that Linda Steiner owned all of the stock of HCCC, Mark Steiner never was paid a salary for the services he performed for the corporation, and Linda received all of the profits. Plaintiff's attorney, Paul Gaide and Kroll, McNamara, Evans and Delahanty, LLP went overboard to prove what was admitted or testified to by the defendants. It was unnecessary to prove every transaction HCCC entered into in order to establish that the defendants perpetuated the fraud of "diversion of the fruits of one's labor."
Indications of plaintiff's attorney excessively litigating this case are that Attorney Paul Gaide filed a ninety-page motion to compel compliance with interrogatories which had hundreds of pages of exhibits attached. The Kroll office filed an amended complaint of one hundred twenty-one pages which the court refused to allow. And then plaintiff filed a second revised complaint of thirty-one pages. These attorneys also filed one hundred and sixty-four requests for admissions of fact and fifty requests for admission of documents.
Another factor to consider is the amount involved and the results obtained. Here, the amount involved was approximately $42,000. Plaintiff sought interest from the date of judgment to the date of its application for counsel fees which would have been over $65,000. The court disallowed interest. Consequently, the plaintiff did not achieve even half of what it sought.
At the hearing on the awarding of counsel fees plaintiff's counsel admitted that he claims $10,000 for plaintiff's application for counsel fees. That seems excessive.
The court further notes that this litigation could have been avoided if plaintiff had made a reasonable demand to settle the case. Instead it issued an execution on the property of the defendant in 2003 and 2004 based upon a judgment debt of $41,718.48, plus interest of $51,852.40. The interest clearly related back to the date of the judgment and included the seven years in which the plaintiff made installment payments in accordance with the judgment. Plaintiff was not entitled to interest of more than $28,000 during that period of time.
One Superior Court case, S. Pope, Inc. v. Pope Exterminating, Inc., et al., Superior Court, No. 66712, judicial district of Middlesex at Middletown (July 6, 1994, Walsh, J.) [ 12 Conn. L. Rptr. 93], held that where the plaintiff's conduct was unfair "the court concludes it would be inappropriate to award attorneys fees to the plaintiff." In this case the court does not find plaintiff's excessive litigation warrants denial of its legal fees.
However, when plaintiff's attorney hours are excessive or unreasonable, the court has discretion "simply to deduct a reasonable percentage of the number of hours claimed as a practical means of trimming fat from a fee application." Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998).
In Brown v. Palumberi, et al., Superior Court X0ACV030194432, judicial district of Stamford-Norwalk (June 30, 2005, Adams, J.), the court found "there was simply too much time spent on certain matters involved in the litigation and this engendered unreasonable fees and costs," and it determined "the attorneys fee request should be reduced by forty percent to meet the standard of reasonableness."
In this case, applying the Johnson factors mentioned above, the court determines the plaintiff's requested fee of $125,924.94 should be reduced by twenty-five percent, or by $31,481,24, making the allowable fee $94,443.71.
Plaintiff claims costs of $5,975.02. The court notes that plaintiff claims the expense of travel from its office to court in the amount of $71.66. That expense is not allowable, thereby reducing plaintiff's costs to $5,903.36.
Based on the foregoing, the court awards plaintiff counsel fees of $94,443.71 plus costs of $5,903.36, making the total $100,347.07.