Opinion
FSTCV126016910S
07-28-2016
Weinshel, Wynnick & Associates, LLC et al. v. Marie Bongiorno et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Hon. Kevin Tierney, Judge
This is a Memorandum of Decision on a collection lawsuit on a one-day court trial held on May 3, 2016. The first named plaintiff is the accounting firm of Weinshel, Wynnick & Associates, LLC doing business in Fairfield, Connecticut. The second plaintiff is Michael Weinshel, a principal in the firm of Weinshel, Wynnick & Associates, LLC. He is a licensed accountant and CPA. The total amount sought by the plaintiffs for its accounting services including accrued interest is slightly less than $30,000.00.
The first named defendant, Marie Bongiorno of Stamford, is a former client of the accounting firm. Marie Bongiorno commenced a Stamford, Connecticut dissolution of marriage action against her husband, George Bongiorno, who was also a client of the accounting firm. Numerous Bongiorno business entities were also clients of the plaintiffs. The second named defendant, Mary Badoyannis, was the attorney of record for Marie Bongiorno in the above dissolution of marriage action. There is no evidence that the defendant, Mary Badoyannis, was never a client of the plaintiffs.
The operative complaint is the Revised Complaint dated June 25, 2013 (#135.00). All five counts of the Revised Complaint were alleged as against both defendants in favor of both plaintiffs. The five counts are breach of contract, violation of the implied covenant of good faith and fair dealing, violations of the Connecticut Unfair Trade Practices Act, quantum merit, and unjust enrichment. Both defendants were represented by both Attorney Mary Badoyannis and the Law Office of Peter V. Lathouris. The operative Answer is dated August 6, 2014 (#143.00). There were no special defenses, setoffs, or counterclaims filed by any of the defendants.
Prior to the commencement of the evidence this court noted a number of deficiencies within the Answer and Revised Complaint as follows: (1) the Answer was filed by " the Defendants, Marie Bongiorno" without naming Mary Badoyannis as one of the defendants; (2) the Answer was signed by " THE DEFENDANTS MARIE BONGIORNO MARY BADOYANNIS"; (3) the Revised Complaint in COUNT TWO, paragraph 9 alleged " Plaintiffs had made demand upon Defendants but Defendants have failed and refuse to pay Plaintiffs." There was no Answer to that paragraph 9. A similar allegation was contained in COUNT ONE, paragraph 7 and the operative Answer denied those allegations; (4) COUNT THREE paragraph 6 was answered by a general denial and yet the Revised Complaint (#135.00) contains no paragraph 6 in COUNT THREE; (5) COUNT FOUR contains eight separately numbered paragraphs including paragraph number 7, whereas the Answer (#143.00) contains two separate answers to the one paragraph 7; a denial and no knowledge. The parties responded to these inconsistencies prior to the commencement of the evidence. The parties agreed that these were typographical errors. The parties, in lieu of amending the pleadings, filed a handwritten Stipulation on May 3, 2016 (#155.00). Prior to the evidence, the court on the record deemed that the August 6, 2014 Answer (#143.00) to be filed on behalf of both defendants. The court found that both defendants authorized the Law Offices of Peter V. Lathouris to file that Answer. The court found that the Revised Complaint and Answer could be rightly understood. (#135.00, #143.00.)
After review of these typographical errors, the pleading inconsistencies and the May 3, 2016 Stipulation, the court finds that the pleadings were closed by the August 6, 2014 Answer. Berlingo v. Sterling Ocean House, Inc., 203 Conn. 103, 106, 523 A.2d 888 (1987). The court finds that the pleadings were closed and no jury claim was filed.
The plaintiffs' Revised Complaint sought money damages in all five counts in addition a claim for attorneys fees pursuant to the Connecticut Unfair Trade Practices Act, Gen. Stat. § 42-110g, in COUNT THREE. No attorneys fees were claimed for COUNTS ONE, TWO, FOUR and FIVE. After the conclusion of the testimony, both parties filed post-trial briefs.
The court makes the following findings of fact and legal conclusions:
Plaintiff, Weinshel, Wynnick & Associates, LLC, is a limited liability company doing business in Fairfield, Connecticut. It is engaged in the accounting profession. The plaintiff, Michael Weinshel, is a CPA, a licensed accountant and a partner in the accounting firm of Weinshel, Wynnick & Associates, LLC. For many years Weinshel, Wynnick & Associates, LLC had been the personal accountants for Marie Bongiorno and her husband, George Bongiorno. The plaintiffs had also been the accountants for various Bongiorno entities that owned real property and conducted other businesses in Connecticut. The Bongiornos had accumulated a substantial net worth. The dissolution of marriage action was filed in the Superior Court, judicial district of Stamford/Norwalk at Stamford returnable on February 23, 2010 by Marie Bongiorno acting by her attorney of record, Mary Badoyannis. Mary Badoyannis is the second named defendant in this lawsuit. Marie Bongiorno sought a dissolution of marriage as against her longstanding husband, George Bongiorno. She sought alimony and a division of the various Bongiorno assets. The dissolution of marriage action was assigned docket number FST FA10-4018151 S.
COUNT ONE of the Revised Complaint alleges a breach of contract. Paragraph 5 states: " Plaintiffs and Defendants, Marie Bongiorno and Mary Badoyannis, Esq. (collectively referred to as 'Defendants'), made an agreement, under which Plaintiffs would provide Defendants, services as an expert witness in a divorce action between Marie Bongiorno and George Bongiorno." Paragraph 6 stated: " Plaintiffs provided services as an expert witness to Defendants and therefore, Plaintiffs have performed their obligations under the Agreement with Defendants." At trial a subpoena duces tecum was issued by Attorney Mary Badoyannis on behalf of Marie Bongiorno in the dissolution action. The subpoena was addressed to Michael Weinshel, CPA and Weinshel, Wynnick & Associates, LLC. The subpoena was dated April 29, 2010 and requested the presence of both the entity and Mr. Weinshel at a Friday, May 14, 2010 deposition. Ex. 10. A NOTICE OF DEPOSITION was attached to the subpoena utilizing the heading of the dissolution case: Marie Bongiorno v. George Bongiorno, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. FST FA10-4018151 S. Schedule A attached to and made part of the subpoena duces tecum contained 17 separate categories of documents to be brought to the May 14, 2010 deposition. Paragraph 17 requested " balance sheets, statements of income, general ledgers, cash disbursement journals, profit & loss statements for the following entities" for the years 2001 through and including 2010. Twenty-one specific entities were named in this paragraph 17. There were sixteen limited liability companies, two corporations, one joint venture, and two separate entities described as " Bongiorno Brothers" and " Bongiorno Maxi Discount Liquor."
In response to the subpoena duces tecum the plaintiffs hired their current attorney, William J. Kupinse, Jr. of the Law Firm of Goldstein and Peck, P.C. of Bridgeport, Connecticut. Mr. Kupinse arranged with Mary Badoyannis for the postponement of the May 14, 2010 deposition and suggested a rescheduled deposition date of June 3, 2010. Mr. Kupinse wrote a letter to Mary Badoyannis dated May 19, 2010 referencing the dissolution case of Marie Bongiorno v. George Bongiorno confirming those facts. This court finds that the May 19, 2010 letter forms the basis of the alleged agreement contained in paragraph 5 and 6 of COUNT ONE, sounding in breach of contract. Ex. 1. According to that letter a retainer of $3,000.00 was to be paid. The following monetary terms were agreed upon. " His hourly rate will be $275 and he will charge five cents per page for copying." After the May 14, 2010 deposition had been cancelled, a new deposition was scheduled for October 7, 2010. A new subpoena duces tecum was issued by Mary Badoyannis. Ex. 11. This September 21, 2010 subpoena duces tecum together with the same Schedule A and a new NOTICE or DEPOSITION for a October 7, 2010 deposition were dated well before the plaintiffs sent the first October 12, 2010 invoice. Ex. 4.
The Revised Complaint alleges that the plaintiffs were furnishing " services as an expert witness" to the defendants in support of Marie Bongiorno's dissolution of marriage action. It appears that there were four separate services that were performed by the plaintiffs as set forth in the two invoices offered in evidence; (1) The testimony of Michael Weinshel at two depositions in the dissolution of marriage action wherein he was questioned as to the accounting documents that he had prepared and filed on behalf of the Bongiornos and the Bongiorno entities; (2) Copying efforts to produce thousands of pages of documents of the various entities to Marie Bongiorno who claimed that she did possess those documents in her records; (3) A review of the suggested documents to be copied to verify that they in fact were the documents requested by the subpoena duces tecum; and (4) Some loose end tax work for the upgrading and modification of various Bongiorno personal tax filings.
" The elements of a breach of contract action are the formation of an agreed performance by one party, breach of the agreement by the other party and damages." Sullivan v. Thorndike, 104 Conn.App. 297, 303, 934 A.2d 827, cert. denied, 285 Conn. 907, 942 A.2d 415 (2008). In order to form a binding and enforceable contract, there must exist an offer and an acceptance based on a mutual understanding by the parties . . . The mutual understanding must manifest itself by a mutual asset between the parties." Krondes v. O'Boy, 37 Conn.App. 430, 434, 656 A.2d 692 (1995). Indefinite agreements cannot support a breach of contract claim. Suffield Development Associates Limited Partnership v. Society for Savings, 243 Conn. 832, 843, 708 A.2d 1361 (1998); Garre v. Geryk, 145 Conn. 669, 674, 145 A.2d 829 (1958)
It is the plaintiffs' burden of proof to show the expert nature of the services rendered. Chiulli v. Zola, 97 Conn.App. 699, 706, 905 A.2d 1236 (2006). Plaintiff has alleged that there was a contract for the plaintiffs to provide " services as an expert witness" and has offered Exhibit 9 to verify those charges. The plaintiffs are bound by the allegations of their pleadings.
Pleadings have an essential purpose in the judicial process . . . The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried . . . For that reason, [i]t is imperative that the court and opposing counsel be able to rely on the statement of issues as set forth in the pleadings . . . [A]ny judgment should conform to the pleadings, the issues and the prayers for relief. (Citations omitted; emphasis omitted; internal quotation marks omitted.) Dickman v. Office of State Ethics, Citizen's Advisory Board, 140 Conn.App. 754, 759-60, 60 A.3d 297, cert. denied, 308 Conn. 934, 66 A.3d 497 (2013).
There were only two invoices that were offered at trial that outlined the nature of the services performed. The first invoice is dated October 12, 2010 in the amount $11,295.40. Ex. 4. This invoice is mentioned in Exhibit 9. Mr. Weinshel as a CPA charged 15 hours at $275.00 per hour for a total charge of $4,125.00. He had two days of depositions. One was billed in this first invoice. Therefore the 15 hours had to include services in addition to that of his first depositions. There is no breakdown for the number of hours of his first deposition in any document in evidence. Mark Wynnick, CPA, whose deposition was not taken, charged 15.5 hours at a lesser hourly rate of $250.00 for a billing of $3,875.00. Two office staff members charged $100.00 per hour for the remainder of the October 12, 2010 invoice. An additional $2,500.00 was added as an " Additional Retainer." These fees totaled $11,295.40. The initial retainer set forth in Exhibit 1 of $3,000.00 had been paid and the $3,000.00 was credited reducing the amount in the invoice to $8,295.40. The " A/R Ledger Report, " Exhibit 9, verifies the $3,000.00 credit as well as the October 12, 2010 invoice in the amount of $11,295.40. The figures in Exhibit 4 correctly add up to the $11,295.40 but there is no itemization or documentation of what the additional retainer of $2,500.00 was for in Exhibit 4.
The second and only other invoice was dated October 18, 2011. Ex. 5. This too is found in Exhibit 9. Therein the $2,500.00 retainer was credited and after the $2,500.00 credit the total bill was $7,375.00. Mr. Weinshel charged four hours at $275.00 for $1,100.00. This work was described as " Redo and additional work on 2009 Individual Income Tax Returns." Michael Weinshel and Mark Wynnick both billed an additional 7 hours and 5.25 hours respectively for work that was described " Work on Gift Tax Returns." The October 18, 2011 invoice billed respectively $1,925.00 and $1,312.50 for that work. Michael Weinshel and Mark Wynnick billed 19 hours and 1.25 hours respectively on " Deposition and Related Matters." The invoice billed $5,225.00 and $312.50 for that work. The second deposition is billed in this second invoice, again without setting forth the time spent in the second deposition. The figures in Exhibit 5 correctly add up to the $7,375.00. The previously billed $2,500.00 was applied to the Exhibit 5 invoice. Exhibit 9 correctly reflects this October 18, 2011 invoice.
Other than these two itemized invoices of $11,295.40 and $7,375.00, no other itemized bills were furnished to this court. Only one payment was made to the plaintiffs, the original $3,000.00 retainer. The Ledger Report Exhibit 9 references dates from June 7, 2010 through and including March 31, 2016. A majority of those charges were testified to as being interest charges on the amount unpaid. Exhibit 9 reflects that fact.
The alleged contract in the May 19, 2010 letter contains no reference to interest. Ex. 1. The only reference to interest in a written format is contained at the bottom of both the October 12, 2010 and the October 18, 2011 invoice. Ex. 4. Ex. 5 " Unpaid balance will bear interest rate of 1% per month, 12% per year, 30 days after invoice." There is no documentation or testimony to indicate that either of the defendants agreed in writing or orally to the imposition of any interest or agreed to that rate of interest on the services to be performed by the plaintiffs.
The plaintiff has the burden of proof to outline the nature and extent of the " expert witness services" that were performed for the breach of contract count. Neither of the two invoices demonstrate with any exactitude or computability that portion of the services performed by the plaintiffs that would amount to " services as an expert witness." Abdo v. Abdulrahman, 144 Conn.App. 574, 581, 74 A.3d 452 (2013) (" It is imperative that the court and opposing counsel be able to rely on the statement of issues as set forth in the pleadings").
The court now turns to the calculation of damages. They must exceed the $3,000.00 already paid for the plaintiffs to recover. The copies of the 2009 individual income tax returns as billed in invoice dated October 18, 2011 in the amount of $1,100.00 were not presented to this court. Ex. 5. The invoice is plural. That would indicate that more than one person was the subject of the income tax returns. Nowhere in the records before this court does it indicate that Marie Bongiorno was responsible for those income tax returns. The court is disallowing the $1,100.00 charged by Michael Weinshel for those services in Exhibit 5.
There is no evidence that Marie Bongiorno was engaged in the preparation of any gift tax returns. That was not part of any agreement between the plaintiffs and the defendants. The court finds no evidence that pursuant to the parties' understanding that Marie Bongiorno would be personally responsible for Michael Weinshel's services of $1,925.00 and Mark Wynnick's services of $1,312.50 billed on the October 18, 2011 invoice for Gift Tax Returns. Ex. 5. The court disallows the charges of $1,925.00 and $1,312.50.
The first element of a breach of contract requires the formation of an agreement. There must be a mutual understanding of the terms of the contract. Neither Exhibit 1 nor the testimony supports any agreement by both defendants to pay to " Redo and additional work on 2009 Individual Income Tax Returns." " Work on Gift Tax Returns" and " Related Matters." The parties did agree that the plaintiffs would charge for expert witness services in the marital depositions. The parties did agree that the plaintiffs would pay a per page copying charge. The two invoices do not clearly delineate what amount of the billings were related to these two agreed-on services. The court under these circumstances cannot find that there was a mutual understanding reached by the parties as to what services were to be performed, how they were to be charged and what the appropriate cost would be. In addition the plaintiffs have limited their contract claim to " services as an expert witness" in the breach of contract claim. (#135.00, COUNT ONE, paragraph 5.)
The issues on COUNT ONE, alleging breach of contract, are found for both defendants.
COUNT TWO alleges violation of the implied covenant and good faith. Paragraph 5 of COUNT TWO states: " Defendants and Plaintiffs made an agreement under which Plaintiff would provide Defendants expert witness services and Defendants would pay Plaintiffs for those services." Paragraph 7 states: " On or about May 2010, December 2010, November 2011 and April 2012 defendants made misrepresentations to Plaintiffs in bad faith including that Defendants would pay to Plaintiffs for the expert witness services that they provided when Defendants knew that the Defendants would not pay the amount Defendants owed under the Agreement which included the Defendants' agreement to pay Plaintiff $275 per hour for their expert witness services and 5 cents per page for copying."
Connecticut law does not permit a claim for money damages for a violation of the implied covenant of good faith and fair dealing without proof of an underlying contract. Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793, 749 A.2d 1144 (2000). Herein the allegations in COUNT TWO relate to the one and same contract that support COUNT ONE. The issues have been found for the defendants on breach of contract in COUNT ONE. No contract has been proven. " 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." Landry v. Spitz, 102 Conn.App. 34, 42, 925 A.2d 334 (2007). There is insufficient evidence of bad faith proven by the plaintiffs.
The issues on COUNT TWO, violations of implied covenant of good faith and fair dealing, are found for both defendants.
COUNT THREE seeks money damages for violations of Connecticut Unfair Trade Practices Act, (CUTPA). Gen. Stat. § 42-110b. The defendant, Marie Bongiorno, is a client and/or former client of the plaintiffs' accounting firm. COUNT THREE fails to allege that the defendant, Marie Bongiorno, is and/or was engaged in any business pursuit. The plaintiffs have not alleged that Marie Bongiorno was engaged " in the conduct of any trade or commerce." Muniz v. Kravis, 59 Conn.App. 704, 711, 757 A.2d 1207 (2000). Neither the allegations of the complaint, the documents before this court, nor the testimony, has shown one scintilla of evidence that Marie Bongiorno was engaged in any trade or commerce. Such an element is necessary for the proof of a CUTPA violation. Gen. Stat. § 42-110b(a); System Pros, Inc. v. Kasica, 166 Conn.App. 732, 764, 145 A.3d 241 (2016). CUTPA defines trade and commerce as: " The advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state." Gen. Stat. § 42-110a(4).
" A simple breach of contract does not offend traditional notices of fairness and, standing alone, does not offend public policy so as to invoke CUTPA." Greene v. Orsini, 50 Conn.Supp. 312, 926 A.2d 708 (2007). The plaintiffs have failed to prove any aggravating factor. Tienshan, Inc. v. George, Superior Court, judicial district of Waterbury, Complex Docket No. X01-CV04-4006907, (July 28, 2006, Sheedy, J.).
The plaintiffs have failed in their burden of proof on the CUTPA count as to Marie Bongiorno. The plaintiffs conceded that fact on page 4 of their Post-Trial Memorandum (#157.00). The issues on COUNT THREE against the defendant, Marie Bongiorno, are found for the defendant, Marie Bongiorno.
COUNT THREE also is alleged against the defendant, Mary Badoyannis. At all times relevant, herein, Mary Badoyannis, was engaged in a trade or commerce, to wit, she was a Connecticut licensed attorney of record representing Marie Bongiorno in litigation. Attorneys can be held liable for CUTPA violations. Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 520-21, 461 A.2d 938 (1983). Attorneys can only be held liable for a violation of entrepreneurial or business aspects of providing legal services. Haynes v. Yale New Haven Hospital, 243 Conn. 17, 32-33, 699 A.2d 964 (1997). " This public policy consideration requires us to hold that CUTPA covers only the entrepreneurial or commercial aspects of the profession of law. The noncommercial aspects of lawyering--that is, the representation of the client in a legal capacity--should be excluded for public policy reasons." Id., 35; Stuart v. Freiberg, 142 Conn.App. 684, 708-09, 69 A.3d 320 (2013)
The evidence only shows that Mary Badoyannis was acting in her capacity as an attorney. She hired the plaintiffs for the purpose of producing financial documents to support Mary Badoyannis in her efforts to adequately represent Marie Bongiorno in a pending dissolution of marriage lawsuit. As an attorney, Mary Badoyannis had the highest duty to obtain a full and complete discovery of all financial documents related to the Bongiorno assets. Ramin v. Ramin, 281 Conn. 324, 340, 915 A.2d 790 (2007). She was performing that duty in acquiring the records from the plaintiffs' accounting firm. There is no indication that she acted in any fashion whatsoever selfishly or for her own fiscal purposes to the exclusion of her duty and obligation to her client. Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 722, 627 A.2d 374 (1993). An attorney has an undivided and unaffected duty to her client. Rule 1.7 of the Rules of Professional Conduct. Loyalty is an essential element in the lawyer's relationship to a client. Comments on Rule 1.7.
Entrepreneurial is defined as " aspects of practice, such as the solicitation of business and billing practices, as opposed to claims directed at the competence of and strategy employed by the defendant." Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 35-36.
Exhibit 4 was sent to George Bongiorno and Marie Bongiorno. Exhibit 5 was sent only to Marie Bongiorno. Both invoices were sent to the Bongiornos at the Bongiorno's address. No copies of the invoices was sent to Mary Badoyannis or to her address.
The plaintiffs have failed to sustain their burden of proof that at all times, Mary Badoyannis was engaged in the conduct of trade or commerce and was acting in an entrepreneurial capacity.
The issues on COUNT THREE, the CUTPA claim as against the defendant, Mary Badoyannis, are found for the defendant, Mary Badoyannis.
COUNT FOUR sounds in quantum merit. Both unjust enrichment and quantum merit deal with the same legal concepts. Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001). The plaintiffs are seeking the same type and amount of damages in both COUNT FOUR and COUNT FIVE. A recovery in COUNT FIVE sounding in unjust enrichment would present a duplicate recovery to any recovery in COUNT FOUR. Quantum merit arises out of the need to avoid unjust enrichment to a party, even in the absence of an actual agreement. Fischer v. Kennedy, 106 Conn. 484, 492, 138 A. 503 (1927); Sidney v. DeVries, 215 Conn. 350, 351-52, fn. 1, 575 A.2d 228 (1990). Both legal theories apply equity and fairness for a defendant to retain a benefit at the expense of the plaintiff. National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034 (1985). This court is applying these same legal and equitable principles in COUNT FIVE.
The issues on COUNT FOUR sounding in quantum merit, are found for both defendants.
COUNT FIVE claims unjust enrichment. COUNT FIVE contains statements that the services being rendered by the plaintiffs were that of an expert witness. The general rules relating to unjust enrichment are not as strict as that of breach of contract. " Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006); Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282-83, 649 A.2d 518 (1994). " Lack of remedy under the contract is a precondition for recovery based upon unjust enrichment." Maris v. McGrath, 58 Conn.App. 183, 186, 753 A.2d 390 (2000). The court finds that the defendant, Michael Weinshel, has expended time in attending his two depositions. The taking of his depositions, in this court's opinion, is in the nature of an expert services. The deposition transcripts were not furnished to the court. The court is not fully aware of every single one of the expert opinions and/or services that were rendered during the depositions. Some of the depositions may have been just a simple explanation of the documents and how they were obtained, which by itself is not expert testimony. The court finds that the time spent attending the two depositions by Michael Weinshel should be paid for by the defendants at the rate of $275.00 per hour, since they are in the nature of expert witness services. In addition the parties contemplated that the plaintiff would be paid for copying costs incurred.
The court finds that the hourly rate of $275.00 for Michael Weinshel and $250.00 for Mark Wynnick are not reasonable charges to be levied for retrieving records and copying records to provide them to an attorney. The court disallows hourly charges of $275.00 and $250.00 for copying of records. It would be more appropriate to have administrative personnel perform those tasks. Loretta Tyer and Darlene Gosnell were billed at the rate of $100.00 per hour as set forth in the October 12, 2010 invoice. Ex. 4.
The court now must determine the dollar amount of the time spent in retrieving and copying documents. The plaintiffs seem to be charging $100.00 per hour for these services. Ex. 4. The $100.00 per hour charge is not part of the May 19, 2014 letter. The question is whether $100.00 per hour is a fair and reasonable charge for administrative personnel to pay for the collation and copying of documents. No doubt Loretta Tyer and Darlene Gosnell are valued employees of the plaintiffs and should have a general familiarity with the records in general based on their lengthy employment with the plaintiff. Their exact duties and experience were not in evidence. One of the employees has formal accounting education and the other has been employed by the plaintiff accounting firm for 10 years. The court believes $100.00 an hour is too high since that would result in over $200,000 annual salary for administrative employees in a small accounting office. Both based on their training and experience should be familiar with the Bongiorno accounting records. 1408 pages of documents were copied at $.05 a page for a billing of $70.40. This copy rate is verified by Exhibit 1. The court will allow the $70.40 charge. The court will allow in addition to the 5 cents per page copy charge, a reasonable amount of time expanded by Loretta Tyer and Darlene Gosnell. The court believes a rate of $25 per hour is in keeping with the economic standards. It is the average wage in the United States. This would compensate the plaintiffs' accounting firm for 29 hours of personnel hours to find, collate and copy 1408 documents. ($575.00 + $150.00 = $725.00/$25.00 = 29 hours).
The court finds that Michael Weinshel's first deposition took two hours and his second deposition took four and one-half hours (#156.00, page 3). He so testified at trial. The court will allow the 6.5 hours. Each hour is at $275.00 for a total of $1,787.50.
This is the calculation of the plaintiffs' invoice Ex. 4 based on the above court's findings:
Michael Weinshel, CPA 15.0 hours @ $275.00 $4,125.00 disallowed
Mark Wynnick, CPA 15.5 hours @ $250.00 $3,875.00 disallowed
Loretta Tyer 5.75 hours @ $100.00 $575.00 allowed
Darlene Gosnell 1.5 hours @ $100.00 $150.00 allowed
Copies 1408 @ $.05 $70.40 allowed
This is the calculation of the plaintiffs' invoice Ex. 5 based on the above court's findings:
Michael Weinshel, CPA 4.0 hours @ $275.00 $1,100.00 disallowed
Michael Weinshel, CPA 7.0 hours @ $275.00 $1,925.00 disallowed
Mark Wynnick, CPA 5.25 hours @ $250.00 $1,312.50 disallowed
Michael Weinshel, CPA 12.5 hours @ $275.00 $3,437.50 disallowed
Mark Wynnick, CPA 1.25 hours @ $250.00 $312.50 disallowed
Michael Weinshel, CPA 6.5 hours @ $275.00 $1,787.50 allowed for depositions
The total allowed by this court is $2,582.90 ($1,787.50 + $575.00 + $150.00 + $70.40 = $2,582.90). The defendants have not filed any set offs or counterclaims. No separate lawsuits have been filed by the defendants seeking the return of a portion of the $3,000.00 paid retainer. The plaintiffs are entitled to keep the additional $417.20 free of any claim by the defendants. The initial retainer of $3,000.00 is sufficient to cover those charges of $2,582.90.
No interest should have accrued since those charges had long since been fully paid for. DiLieto v. County Obstetrics and Gynecology Group, P.C., 310 Conn. 38, 48, 56, 74 A.3d 1212 (2013); McCants v. State Farm & Casualty Company, Superior Court, judicial district of Hartford at Hartford, Docket Number HHD CV 10-6011047 S (April 17, 2014, Vacchelli, J.) [58 Conn.L.Rptr. 24, ]; Salce v. Wolczek, 314 Conn. 675, 696-97, 104 A.3d 694 (2014).
The issues on COUNT FIVE sounding in unjust enrichment are found for both defendants.
" It long has been recognized that an agent is not liable to be sued upon contracts made [o]n behalf of his principal, if the name of his principal is disclosed, and made known to the party contracted with, at the time of entering into the contract." Computer Reporting Service, LLC v. Lovejoy and Associates, LLC, 167 Conn.App. 36, 49, 145 A.3d 266 (2016). Since the damage issues on COUNT FIVE and the issues on COUNTS ONE, TWO, THREE and FOUR have been found for both defendants, the court need not discuss whether Mary Badoyannis and/or Marie Bongiorno are individually liable as principal or agent or both. The issue of joint and several liability of both defendants need not be addressed by this court.
The issues on all five counts are found for the defendants, Marie Bongiorno and Mary Badoyannis.
The clerk may tax costs.