Opinion
NNHCV156052856
09-02-2016
Gregory Cohan v. David Minicozzi
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Steven D. Ecker, J.
This is an action for unpaid fees which plaintiff claims are due in connection with legal services provided to defendant between 2006 and 2010. The parties are both attorneys, and were friends at the time of the underlying proceedings. In 2006, Attorney Minicozzi became the target of third-party discovery in a case in which his former clients were defendants. See American Capital Group, LLC v. Christensen Associates, Inc. et al., Docket No. NNH-CV-06-5004025 ( American Capital I ). Attorney Cohan agreed to represent Minicozzi for the purpose of opposing the discovery efforts. Cohan did so by undertaking the work that one would expect to be required in such an engagement--he filed an appearance on behalf of his client, conducted legal research, reviewed the file and investigated the facts, communicated with relevant participants (including his client and opposing counsel), drafted and filed motions and objections, and so forth. The representation continued as the lawsuit evolved and spawned another lawsuit, American Capital Group, LLC v. Christensen Associates, Inc. et al., Docket No. CV-09-5028397 (American Capital II ). The two cases ultimately were withdrawn in early 2010. In 2015, Cohan filed the present lawsuit demanding payment for legal services provided to Minicozzi in the two American Capital lawsuits. The complaint contained two counts, one for breach of contract and the second for unjust enrichment.
Cohan also seeks to recover compensation for legal work he did on Minicozzi's behalf in connection with potential claims that Minicozzi contemplated bringing, but never filed, against the American Capital plaintiff and its lawyers. See below at n.8.
Trial was held on April 21, 2016, when both parties appeared, testified, and presented extensive documentary evidence. Post-trial briefs were submitted on May 5, 2016. The court has considered all of the evidence, the legal arguments made by each party, and the relevant substantive law. Judgment will enter in favor of plaintiff in the amount of $14, 450.00.
The court finds that the plaintiff performed substantial legal work on defendant's behalf in the American Capital cases, and he did so based on the reasonable--and mutual--expectation that he would be paid for his work. That is, Cohan undertook the representation with the understanding that Minicozzi would compensate him for his services, and Minicozzi authorized the work, and benefitted from it, with the understanding that Cohan would be paid for doing it. There is no real doubt in the court's mind on the subject. Things get murkier, however, with regard to the precise terms of the engagement, because the agreement was never reduced to writing, despite the fact that both parties knew or should have known that a writing was required under the circumstances by the ethical rules governing lawyers. See Rule 1.5, Rules of Professional Conduct (" Rule 1.5"). It was Attorney Cohan's obligation, in his role as Attorney Minicozzi's lawyer, to memorialize the agreement in writing. He failed to do so.
Generally speaking, of course, the absence of a writing in itself does not preclude the formation of a contract. Contracts may be oral, or even may be implied from the surrounding facts. See, e.g., Boland v. Catalano, 202 Conn. 333, 336, 521 A.2d 142 (1987). In whatever form, a contract comes into existence only when certain prerequisites are met. There must be a meeting of the minds, and agreement, as to all essential terms, and those terms must be sufficiently definite and certain that a court is able to ascertain the intention of the parties and enforce their agreement. See, e.g., Glazer v. Dress Barn, Inc., 274 Conn. 33, 51, 53, 873 A.2d 929 (2005); Duplissie v. Devino, 96 Conn.App. 673, 688, 902 A.2d 30 (2006). An implied-in-fact contract arises
The absence of a writing will preclude recovery for breach of contract on public policy grounds under certain circumstances. See, e.g., General Statutes § 20-429 (Home Improvement Act); General Statutes § 52-251c (attorney's contingency fee agreement in claim for damages for personal injury, wrongful death or property damage). Defendant in the present case has pointedly observed that no written contract existed between the parties, but has not raised a formal defense to the breach of contract claim on this ground.
where a plaintiff, without being requested to do so, renders services under circumstances indicating that he expects to be paid therefor, and the defendant, knowing such circumstances, avails himself of the benefit of those services. In such a case, the law implies from the circumstances, a promise by the defendant to pay the plaintiff what those services are reasonably worth.Janusauskas v. Fichman, 264 Conn. 796, 804-05, 826 A.2d 1066 (2003); see Connecticut Light & Power v. Proctor, 158 Conn.App. 248, 254-56, 118 A.3d 702 (2015).
Plaintiff here testified that the parties orally agreed in 2006 (and thereafter) that he would represent Minicozzi's interests in the American Capital cases on an hourly basis at the rate of $250.00 per hour. Defendant denies that any such agreement was ever reached; he says that there was never any explicit conversation regarding fees, and he " never really thought about it." After considering all of the evidence presented at trial and the most reasonable inferences to be drawn from that evidence, the court has concluded that each party's testimony on this particular point may have undergone the distorting effects that can occur when animosity reshapes recollection over time. Under the circumstances, the court cannot know the exact terms of the agreement reached between Cohan and Minicozzi, or even if the agreement was fully expressed in words. The court is convinced, however, that the parties were in fact operating under a contractual agreement, whether express or implied-in-fact. That contract was of a skeletal but nonetheless determinable nature. Its terms provided that defendant would pay plaintiff for the reasonable value of his services. The parties were both experienced lawyers, and both of them earned a living by charging for their professional services. Under the circumstances as they existed during the relevant time period, the parties each understood that Cohan would need to be paid for his time at the end of the representation. The fact that the two were friends likely made them feel that it was unnecessary to formalize the precise terms of payment, and probably caused Cohan to delay requesting payment while the American Capital lawsuits were pending. But their friendship did not change the fact that each of them expected Cohan to be compensated for his services at a reasonable rate. Exactly what rate was reasonable may or may not have been addressed explicitly, and the court will not find that the agreed-upon rate was $250.00/hour. But these parties, two experienced professionals operating within a relatively well-defined market for legal services, would have known how to arrive at such a rate without difficulty when the time came, and, as friends, they would have assumed with a high degree of confidence that they would easily be in a position to calculate the amount due upon conclusion of the engagement. See, e.g., Glazer v. Dress Barn, Inc., supra, 274 Conn. at 53 (to extent the contractual agreement was indefinite, the parties implicitly understood the factors that would be used to assess reasonableness).
If forced to decide the issue, the court would conclude that the contract was an express oral contract, because it is most probable that defendant, at the outset, orally assured plaintiff that he would be paid for his work. This conclusion is based on inferences drawn by the court from its observations about how the respective parties most likely conducted themselves as professionals, and as friends, during the relevant time period.
Defendant argues that even if a contract existed, plaintiff cannot recover because the three-year statute of limitations governing oral contracts has run. See General Statutes § 52-581. The court disagrees. The contract between the parties could be characterized either as an oral express contract (if mutual assent was manifested by words) or an implied-in-fact contract (if assent was manifested by conduct). In either case, the agreement between the parties did not require payment prior to termination of the underlying cases. The American Capital lawsuits were withdrawn on or about February 24, 2010. Any cause of action for breach, therefore, would have accrued at that time. See, e.g., Mitchell v. Guardian Systems, Inc., 72 Conn.App. 158, 164, 804 A.2d 1004 (2006). If the contract at issue is characterized as an express oral contract, Cohan's obligations were fully executed by the time payment was due, and the six-year statute of limitations under General Statutes § 52-576 therefore applies. See, e.g., Tierney v. American Urban Corp., 170 Conn. 243, 243, 365 A.2d 1153 (1976); Vanliner v. Fay, 98 Conn.App. 125, 144-45, 907 A.2d 1220 (2006). If the contract was implied-in-fact, it also is governed by the six-year limitations period under that same statute. Plaintiff thus had six years from February 24, 2010, to file suit against Minicozzi for breach, and this case was timely commenced on February 13, 2015.
The court will address plaintiff's alternative claim of unjust enrichment for the sake of completeness. Plaintiff would be entitled to recover for unjust enrichment even were the court to find that no contract existed, because the elements of that cause of action are clearly met on these facts. See, e.g., Vertex Inc. v. City of Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006) (discussing elements of unjust enrichment); Gagne v. Vaccaro, 255 Conn. 390, 409, 766 A.2d 416 (2001). The court finds that defendant was benefitted by plaintiff's legal work, he failed to pay for that work, and plaintiff has been financially harmed as a result. It would be unfair and inequitable if defendant were allowed to retain the benefit of plaintiff's labor without payment. Minicozzi candidly acknowledges " that plaintiff represented him and that plaintiff's representation provided some value to defendant." Defendant's Post-Trial Memorandum dated May 5, 2016, at p. 3.
The issue of damages remains. Ordinarily, the measure of damages for breach of contract is not the same as that used to calculate an award for unjust enrichment. Contractual damages typically are based on the loss suffered by the plaintiff as a result of the defendant's breach, whereas a plaintiff's recovery for unjust enrichment is based, not on plaintiff's loss, but defendant's gain, i.e., the value of the benefit conferred to defendant. See, e.g., David M. Somers and Assocs. v. Busch, 283 Conn. 396, 409, 927 A.2d 832 (2007); Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 649 A.2d 518, 522 (1994). But despite this distinction, sometimes the two different measures of damages end up in the same place. This convergence occurs because, in some instances of unjust enrichment, it would be exceedingly difficult to determine or monetize the benefit conferred by a plaintiff to a defendant; in such cases, courts sometimes use the reasonable value of plaintiff's services as the best way to measure the value of that benefit. See, e.g., Hartford Whalers Hockey Club, supra, 231 Conn. at 523 (contract price provided reasonable estimate of benefit conferred); Ramondetta v. Amenta, 97 Conn.App. 151, 166, 903 A.2d 232 (2006) (proper exercise of discretion to measure unjust enrichment by calculating reasonable value of services rendered).
This is such a case. The contractual measure of damages here is determined based on the reasonable value of plaintiff's services, because that is what Minicozzi agreed to pay. See above at p. 3. The court concludes that this same measure should be used to determine the benefit conferred upon defendant, for purposes of plaintiff's unjust enrichment claim. The contractual measure of damages is appropriate in this instance because it is impossible to quantify, in dollars, the benefit conferred by plaintiff on Minicozzi. Minicozzi was not a plaintiff in the American Capital cases and did not stand to gain financially by a successful outcome; his objective (as a witness) was to prevent or delay the American Capital plaintiff's discovery efforts, and (as a defendant) to avoid a judgment against him or any payment of money by him to that plaintiff. Cohan's work achieved those objectives, to Minicozzi's benefit, but it is not possible to monetize that benefit except by proxy. We know only that (1) Minicozzi faced potential exposure to significant harm in the underlying cases; (2) the claims involved allegations of wrongdoing and sought substantial money damages; and (3) Minicozzi chose to fight vigorously from the outset, and stood behind Cohan's efforts to mount an aggressive defense on behalf of his client. We also know that Minicozzi was concerned enough about the allegations to assert his fifth amendment privilege at his deposition. At the end of the day, the American Capital cases were withdrawn without any costs, financial or otherwise, to Minicozzi. The outcome, plainly, was beneficial to him. It is impossible to know if the same result could have been obtained without Cohan's work, or if Cohan could have obtained the same result more efficiently doing less work, and it would be futile to speculate about such counter-factual scenarios. The fact is that Cohan did the work and obtained the result. The court believes that the best measure of the benefit to Minicozzi is the reasonable value of Cohan's services giving rise to that result.
The court does not mean to suggest that the underlying allegations against defendant were meritorious or otherwise valid, or that any adverse inference can be drawn from his invocation of the privilege against self-incrimination at his deposition. The point here is that the allegations, valid or frivolous or anywhere in between, were serious enough in defendant's view to warrant a vigorous defense.
Minicozzi paid a $5, 000.00 " deductible" charge to his own professional liability insurance carrier after it assigned counsel to represent him in American Capital II, but this expense was incurred by him as the result of invoking his rights under an insurance policy providing protection against the claims made in the lawsuit, not as a result of any adverse judgment or settlement.
Late in the proceedings, counsel hired by Minicozzi's professional liability carrier appeared as counsel, and worked together with Cohan on Minicozzi's behalf. The court will not attempt to apportion credit between counsel for the successful outcome; there is no realistic basis to do so. In the court's view, it is clear that Cohan's work substantially contributed to the result obtained.
The court finds that the reasonable value of plaintiff's services to defendant is $14, 450. The court has arrived at this figure by considering all of the record evidence bearing on the factors used to determine a reasonable attorneys fee under Connecticut law. See Rule 1.5(a); Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 259, 828 A.2d 64 (2003). The court has considered each and every factor and assessed its applicability in light of the particular facts of this case. Giving each factor the weight deemed appropriate, the court believes that $14, 450 is the right measure of contractual damages/unjust enrichment here. Put in terms of the lodestar methodology, the fee represents 85 hours of work at the rate of $170/hour.
Defendant's insurance deductible ( see above n.5) has been taken into account in arriving at this fee, and therefore is not a proper additional reduction.
The court did not include in this award any recovery for work done by Cohan in connection with Minicozzi's consideration of a potential claim against the American Capital plaintiff or its lawyer for vexatious litigation (or similar cause of action). Any such lawsuit would have been a separate undertaking, and almost certainly would have been pursued on a contingent-fee basis. The limited work done by Cohan on this potential matter was preliminary in nature, and was not part of the representation of Minicozzi's interest as a witness or defendant in the American Capital cases.
Judgment shall enter in plaintiff's favor in the amount of $14, 450, plus costs. No prejudgment interest is awarded.
It is so ordered.