Opinion
No. CV 05-4016170-S
November 13, 2008
AMENDMENT TO MEMORANDUM OF DECISION ON COUNTERCLAIM OF JOSEPH S. WALL DATED OCTOBER 10, 2008
Said Memorandum of Decision is amended as follows:
Following the first "Note" on page 22, the following is added:
As for the attorneys fees mentioned on page 21, the Court has received a motion for attorneys fees and costs from the counterclaim plaintiff (Wall) dated October 22, 2008. This has been accompanied by an affidavit regarding attorneys fees from Wall's attorney, Paul H.D. Stoughton. Also submitted is a copy of the agreement for legal services between Wall and Wall's attorney and a bill of cost dated October 22, 2008. These documents are attached as schedules A, B and C respectively.
It is clear that the agreement for legal services is reasonable. It is based upon a one-third contingency fee. In the case of Fabri v. United Techs. Int'l, Inc., United States District Court for Connecticut, 193 F.Sup.2d 480 dated March 29, 2002 in a ruling on plaintiffs' motion for attorneys fees. Senior United States District Judge Peter C. Dorsey cited with approval the Superior Court case of Jones v. Ippoliti, No., CV 93531168 (1995) WL 493 782, at *23, Connecticut Superior Court, August 7, 1995 Judicial District of Tolland at Rockville, Rittenband, J., which stated "the existence of Contingen[t] Fee Agreements makes no difference in the award of attorneys fees under CUTPA". Judge Dorsey further held that the case of Sorentino v. All Seasons Services, Inc., 245 Conn. 756 (1998) holds that Contingent Fee Agreements are a floor to a reasonable award" (emphasis added). The major case by the Connecticut Supreme Court is Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 270 (August 2003) which states in pertinent part as follows: "We conclude that under this Court's decision in Sorentino, when a Contingency Fee Agreement exists, a two step analysis is required to determine whether a trial court permissibly may depart from it when awarding a reasonable fee pursuant to statute or contract. The trial court first must analyze the terms of the agreement itself. In a footnote the Supreme Court stated as follows: "To be reasonable, a Contingency Fee Agreement, must, at the very least, comply with the prescriptions of subsections (c) and (d) of rule 1.5 of The Rules of Professional Conduct. Rule 1.5c of the Rules of Professional Conduct provides "a fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by subsection (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages of the recovery that shall accrue to the lawyer as a fee in the event of settlement, trial or appeal, whether and to what extent the client will be responsible for any court costs and expenses of litigation, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination."
Rule 1.5d prohibits a contingent fee in a domestic relations matter and a criminal case, and, therefore, is not applicable in the case at bar.
According to Schoonmaker v. Brunoli Supra the two step analysis is as follows:
1. Is the Contingent Fee Agreement, by its terms, reasonable.
2. Whether the trial court may depart from the terms of the agreement in order to prevent substantial unfairness to a party.
FINDINGS
1. The Court has reviewed the Contingent Fee Agreement and finds that by its terms it is reasonable. It is in compliance with Rule 1.5(c) of the rules of professional conduct.
2. The Court finds that it should not depart from the terms of the Contingency Fee Agreement because it does not do substantial unfairness to the counterclaim defendant, AR. It would be unfair to said defendant if the Court were to depart from said terms by increasing the one-third fee which the Court will not do. To depart from the terms of the Contingent Fee Agreement by reducing the one-third fee and the costs would be of substantial unfairness to the counterclaim plaintiff, Wall. The purpose of the statute C.G.S. § 31-72 is to make the person who is deprived of his wages whole again. Wall is obligated under the contract or agreement with his attorneys to pay as a fee one-third of the recovery or judgment plus the court costs. To reduce that amount would be to cut into and reduce the recovery to which this Court has found that Wall is entitled.
Accordingly, this Court finds that the Contingent Fee Agreement is by its terms, reasonable and further, that the Court should not depart from its terms because to do so would cause substantial unfairness to the parties.
Accordingly, the motion for attorneys fees and costs dated October 22, 2008 is granted. The Court awards to the counterclaim plaintiff, Wall, the sum of $94,275 in attorneys fees and $1,162.09 in costs per the bill of costs also dated October 22, 2008. This, added to the Judgment of $282,827 on page 21 of the October 10, 2008 decision, results in a total judgment in favor of Wall in the amount of $378,264.09 which is hereby granted.