Opinion
CV085005984S
01-17-2020
Lisa Bruno v. Reed Whipple et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Brazzel-Massaro, Barbara, J.
MEMORANDUM OF DECISION RE MOTION FOR ATTORNEYS FEES #S 257, 267, AND 270
Brazzel-Massaro, J.
INTRODUCTION
Each of the parties to this action have filed motions for attorney fees for each of the stages of the action beginning with the original twelve counts in the complaint that was filed on November 10, 2008 and continuing through the decisions which were rendered by the Appellate Court on two appeals and thereafter on one occasion by the Supreme Court which denied the petition for certification to appeal.
The defendants, Reed Whipple and Heritage Homes, filed their first motion for attorney fees on March 21, 2017 before the Appellate Court and the Supreme Court ruled upon the appeal of the trial court decision following the hearing in damages. The second motion was a supplemental motion dated May 29, 2019. The plaintiff filed her motion for attorney fees dated June 20, 2019.
Each of the parties relies upon the contract provisions set forth in the contract for the construction of the home at 111 Spring Valley Road, Ridgefield, Connecticut which awards attorneys fees for any breach of contract to the prevailing party. The plaintiff also argues that C.G.S. § 42-150bb entitles her to receive the fees requested by the defendants in the amount of $305,533.75.
The court will address the claims of each party in accordance with the law as to prevailing parties and the essential elements for the awarding of attorneys fees.
DISCUSSION
A. General Standard
The general rule of law known as the American rule is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception ... Connecticut adheres to the American rule ... There are few exceptions. For example, where a specific contractual term provides for the recovery of attorneys fees and costs ... or where a statute controls." (Internal quotation marks omitted.) Peterson v McAndrew, 160 Conn.App. 180, 209, 125 A.3d 241 (2015). "To be a prevailing party does not depend upon the degree of success at different stages of the suit; but upon whether at the end of the suit or other proceeding, the party, who has made a claim against the other, has successfully maintained it. If he has, he is the prevailing party." Premier Capital, Inc. v. Grossman, 92 Conn.App. 652, 661, 887 A.2d 887 (2005).
"A prevailing party is one in whose favor a judgment is rendered, regardless of the amount of damages awarded." (Internal quotation marks omitted.) Yeager v. Alvarez, 134 Conn.App. 112, 123, 38 A.3d 1224 (2012).
B. Analysis
Before determining what amount, if any, of attorneys fees are appropriate the court must first analyze the judgment and find whether the party is the "prevailing party" as indicated above and in accordance with the contract provision which permitted the prevailing party to recover attorneys fees. In this action, both parties have argued that they were prevailing. However, an interpretation under the law would warrant a finding that only one of the parties is prevailing. The defendants filed their first motion for attorneys fees after the hearing in damages where the trial court entered judgment for the defendant after determining that the plaintiff had failed to support her claim for damages. This motion for attorneys fees was premature because the decision of Judge Truglia was on appeal. The defendants rely upon the decision of Judge Truglia which stated that judgment was entered for the defendant when the very decision was challenged. In the first appellate challenge, the Court ruled that: "We reverse the judgment in favor of Heritage Homes on the plaintiff’s claim of breach of contract and remand the case for a hearing in damages on the claims pursuant to the unchallenged portion of the jury’s verdict and accompanying answers to interrogatories concerning that claim." Bruno v. Whipple, 162 Conn.App. 189 (2017). Therefore, at the hearing in damages the prevailing party was the plaintiff. However, in its decision on the hearing in damages the court stated that judgment is entered for the defendant and there was no monetary award. This memorandum of decision was filed on February 21, 2017. The defendant submitted their first motion for attorneys fees on March 21, 2017. The defendant has relied upon the finding of the court in the February 21, 2017 decision for their motion. However, on December 4, 2018, the Appellate Court issued a decision that the trial court improperly ruled that the plaintiff was not entitled to damages even though she did not prove compensatory damages. It found that nominal damages would be appropriate but it would not make such an award. Bruno v. Whipple, 186 Conn.App. 299, 109 A.3d 604 (2018). The defendant has misapplied the decision of the trial court without incorporating the clear findings of the appellate court. The second appeal clearly finds that the plaintiff is the successful party on the breach of contract provision but the failure to award at a minimum nominal damages was not clearly erroneous so as to reverse the findings on the damages. This cannot be interpreted in any other way except that the plaintiff prevailed on the breach of contract claim. Therefore, in accordance with Yeager v. Alvarez, supra., 134 Conn.App. 112, the plaintiff is considered as the prevailing party even though the court determined she was entitled to no more than nominal damages.
The defendants do not provide any support for their position for attorneys fees and rely on the original submission for fees based upon the contract provision. At the conclusion of the appellate decisions and to date they are not prevailing in accordance with the findings by the appellate courts. Thus, the court denies the defendants motion for attorneys fees.
C. Plaintiff’s Motion for Fees
The plaintiff filed a motion for attorneys fees dated June 20, 2019. The motion included an affidavit of Lisa Bruno with exhibits in support of her motion. Exhibit 1 attached to the motion includes a synopsis of attorneys who have represented the plaintiff and her inclusion of the hourly fees which she agreed to in the retention letters attached as exhibits. The plaintiff requests fees of $71,719 for the three attorneys who represented her through various phases of the legal action. The plaintiff also includes a lengthy list of costs many of which are not supported with appropriate documentation or support in conjunction with statutory or reasonable costs.
The Supreme Court has remarked that "[a] court has few duties of a more delicate nature than that of fixing counsel fees." (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 258 (2003). This court must address that delicate task.
"The amount of attorneys fees to be awarded rests in the sound discretion of the trial court and will not be disturbed on appeal unless the trial court has abused its discretion ... Sound discretion, by definition, means a discretion that is not exercised arbitrarily or willfully, but with regard to what is right and equitable under the circumstances and the law ... Judicial discretion is always a legal discretion, exercised according to the recognized principles of equity. The trial court’s discretion imports something more than leeway in decision making and should be exercised in conformity with the spirit of the law and should not impede or defeat the ends of substantial justice." (Citation omitted; internal quotation marks omitted.) Rodriquez v. Ancona, 88 Conn.App. 193, 201-02, 868 A.2d 807 (2005).
The court has some guidance in the award of reasonable attorneys fees and looks to a range of factors in determining if the plaintiff has satisfied her burden for an award of attorneys fees. Just as in the award of damages in this action, the plaintiff must demonstrate and satisfy the court as to the award of attorneys fees and costs.
"It is axiomatic that the determination of reasonableness of attorneys fees appropriately takes into consideration a range of factors. It is well established that a trial court calculating reasonable attorneys fees makes its determination while considering the factors set for the under Rule 1.5(a) of the Rules of Professional Conduct. These factors include the time and labor spent by the attorneys, the novelty and complexity of the legal issues, fees customarily charged in the same locality for similar services, the lawyer’s experience and ability, relevant time limitations, the magnitude of the case and the results obtained, the nature and length of the lawyer-client relationship, and whether the fee is fixed or contingent. When awarding attorney fees, the court must consider all of the factors and not seize on one to the exclusion of others." (Citation omitted; internal quotation marks omitted.) Rodriguez v. Ancona, supra, 201-02.
"We have long held that there is an undisputed requirement that the reasonableness of attorneys fees and costs must be proven by an appropriate evidentiary showing ... We have also noted that courts have a general knowledge of what would be reasonable compensation for services which are fairly stated and described ... and that courts may rely on their general knowledge of what has occurred at the proceeding before them to supply evidence in support of an award of attorneys fees." (Citations omitted, internal quotation marks omitted.) Smith v. Snyder, 267 Conn. 456, 471, 839 A.2d 589 (2004).
"[T]he initial estimate of a reasonable attorneys fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate ... The courts may then adjust this lodestar calculation by other factors ... For guidance in adjusting attorneys fees, Connecticut courts have adopted the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). In the instant application for fees the plaintiff has not provided the general information that would permit the court to exercise even the initial calculation of the fees based upon hours and fees per hour. For instance, the plaintiff indicates in Exhibit 1 that the fees for Attorney Williams are $40,000 with the calculation based upon a fee of $400 per hour for the services of Attorney Williams. The only supporting documentation from Attorney Williams is a letter dated July 24, 2008 in which the plaintiff agrees to retain counsel for a fee of $400 per hour for Attorney Williams and $250 per hour for work by any associate. (Pl’s. Exh. 3.) The original retainer is $10,000. (Pl’s. Exh. 3.). There are no records supporting payment by the plaintiff, no records of work performed by Attorney Williams or his associates and no evidence in support of the claim of 100 hours of work at $400 per hour. Additionally, the fees noted in the Table of fees for Attorney Winans and Attorney Sexton contain the same difficulties for approval. Neither of the amounts claimed are supported with billing information and the plaintiff submits retention letters that provide no supporting information of the work completed or background to support the fees requested. (Pl’s. Exh. 1.) This total lack of supporting documentation prohibits this court from determining if the fees should be awarded based upon the Johnson factors, which are (1) the time and labor required, (2) the novelty and difficulty of the questions, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee for similar work in the community, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation and ability of the attorneys, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases." (Citations omitted; internal quotation marks omitted.) Ernst v. Deere & Co., 92 Conn.App. 575, 576, 886 A.2d 845 (2005).
The "list of factors [the Johnson factors] is not ... exclusive. The court may assess the reasonableness of the fees requested using any number of factors." (Internal quotation marks omitted.) Id., 576 n.3. Similarly, a contract clause providing for reimbursement of incurred fees permits recovery upon the presentation of an attorney’s bill, so long as that bill is not unreasonable upon its face and has not been shown to be unreasonable by countervailing evidence or by the exercise of the trier’s own expert judgment. N.E. Leasing v. Paoletta, 89 Conn.App. 766, 778, 877 A.2d 840 (2005), citing Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 246, 440 A.2d 306 (1982). The plaintiff has argued that the fees are reasonable in comparison to the fees requested by the defendant for this action. However, the court cannot award fees which have absolutely no documentation that could follow the twelve Johnson factors such as support for the skill level of the counsel, the work performed and by which counsel, on behalf of the client, the hours devoted, the reputation or experience of the counsel performing the work and the relationship with the client. The support that the plaintiff has submitted for attorneys fees is so lacking in detail that no award can be made for attorneys fees for the plaintiff. Thus, the court denies the motion for attorneys fees by the plaintiff.
The plaintiff has also included a list of costs in the Table in Exhibit 1 which she claims are to be awarded. Once again, the plaintiff has failed to include any supporting documentation for those costs that would be permitted pursuant to either the contract interpretation or the statutory cost. The plaintiff has included the costs as part of the motion for attorneys fees and has not submitted a separate Bill of Costs. The submission for the costs are denied.
These costs also include a charge for an expert which again does not include supporting documentation.
CONCLUSION
Based upon the above, the court denies both the Defendant’s Motion for Attorneys Fees and the Plaintiff’s Motion for Attorneys Fees. The court also denies the award of costs as set forth in the Plaintiff’s Table 1 of Exhibit 1.