Opinion
No. CV 00-0808233
August 19, 2008
MEMORANDUM OF DECISION
This case has been consolidated with case no. 0806814, Ruth Kendall v. David M. Somers. The second file contains the same issues as those issues contained in the pleadings of the titled file. Therefore, this memorandum will deal with the claims of each party as to both files. However, the pleadings in the titled file fully encompass the claims of both parties. All briefs and arguments were addressed to the titled file but resolve the issues in both files.
Although this action was brought by David M. Somers and Associates, P.C., David M. Somers was formerly president and sole attorney employed by the plaintiff's law firm, and was individually responsible for the representation of the defendant. For purposes of clarity, all references to the plaintiff in this opinion are to David M. Somers, individually and binding on him personally. See Somers Associates, P.C. v. Busch, 283 Conn. 396 (2007), fn.1.
FACTUAL BACKGROUND
As noted above, the instant action was commenced as two separate lawsuits which were consolidated by the court. Both actions arose from a dispute between the plaintiff in this action (Somers) and the defendant (Kendall) over a claim by Somers for fees due to him for the prosecution of a dissolution of marriage action wherein Kendall was represented by Somers in the action against her then husband, Michael Pilkington, a British national.
This action was commenced as a foreclosure on Kendall's home of a mortgage held by Somers for attorneys fees claimed due to Somers for his representation of Kendall in the dissolution action.
Kendall has denied the enforceability of the mortgage and, additionally, has asserted other special defenses of legal malpractice, breach of contract, recoupment, that the mortgage was obtained by duress, and fraudulent misrepresentation by Somers of his bills and failure to disclose the nature of pending grievance proceedings against him which terminated in Somers' disbarment.
These defenses will be discussed separately later in this memorandum.
Kendall, additionally, has filed a counterclaim alleging malpractice, breach of contract, negligence, a violation of CUTPA and, in addition, fraudulent inducement as to his bills in obtaining the mortgage. The court will address these issues also later in this memorandum.
DISCUSSION AND FINDINGS AS TO CLAIMED DEBT DUE SOMERS FOR LEGAL FEES (MORTGAGE DEBT), DUE IN THE FORECLOSURE ACTION
Kendall executed a retainer agreement with Somers on February 11, 1998. The agreement required Kendall to pay an hourly fee of $240 plus various other fees for work done by Kendall's support staff.
The dissolution action was instituted by Somers in the Windham Judicial District on March 23, 1998 and continued with Somers as counsel for approximately twenty months until Somers' disbarment on September 15, 1999.
During the twenty-month period, Somers was confronted by the husband's attorneys, Nussbaum Porino, who presented a "no holds barred" defense to the action. As observed by an expert witness, Attorney James Flaherty, "the meter was constantly running." Somers' main challenge was to obtain funds held in a foreign trust for Pilkington, reportedly worth several million dollars. Additionally, he was to secure funds from trust owned land and personal property owned by Pilkington and the trust in the United States.
Somers achieved some success in obtaining money from Pilkington, in the United States although nothing was recovered from the foreign trust despite large expenditures for legal and other fees by Somers in pursuit of that goal.
Somers did, in fact, obtain sizeable alimony pendente lite as well as substantial funds from the sale of Pilkington's U.S. assets (noted below). Somers testified as to work performed by him exceeding 1,000 hours. He filed 108 motions and Nussbaum Porino, the opposing counsel, filed 82 motions totaling an incredible 250 motions in a case involving no children but only an alimony claim.
However, inasmuch as Somers was disbarred during the course of the dissolution, our Supreme Court has deemed that the only remedy available to Somers is to be based on unjust enrichment, (the benefit derived by Kendall from his efforts) and not on the basis of the contract (retainer agreement). Somers Associates, P.C. v. Busch, supra.
That court has expanded the meaning of benefits by adding "actions taken by an attorney should be considered `beneficial' to a client if they are reasonably undertaken in furtherance of the client's goods and the objectives proved in the retainer agreement." Busch at 411 fn. 14.
Somers is claiming a total fee (debt) of $505,186 plus unpaid out of pocket expenses of $24,719.
The initial mortgage debt to Somers specified therein was $163,619 with total claimed a debt of $253,595 as of now plus interest and expenses.
This court is charged with determining the amount of the debt due on the mortgage (if any), which it must do in accordance with the holding in Busch. To make this determination the court must first determine the fees and costs due from Kendall.
DETERMINATION OF ANY FEES AND COSTS DUE SOMERS UNDER A BUSCH ANALYSIS
The evidence heard by the court satisfies a finding that much of Somers' efforts and time were reasonably undertaken to further his client's goal of obtaining substantial alimony from her husband. Having observed that, the court has also observed that a very large portion of Somers' efforts were to accumulate many hours spent on needless filing of motions to further inflate his fees. Much of the time claimed spent, in the opinion of the court, was highly exaggerated. Both counsel (Somers and Nussbaum Porino were equally guilty of filing a myriad of unnecessary motions, noted above, resulting in 32 court hearings only to garner large fees.
Having said that, it is indisputable that Somers obtained a substantial amount of money for his client.
There is disagreement between the parties as to the amount of money recovered by Somers, the amount paid by Kendall to Somers, and also the amount distributed by Somers to Kendall.
At the outset, this court finds that the record keeping by Kendall was nil and by Somers was nothing short of abysmal.
As to credibility, neither Somers nor Kendall were paragons of virtue as to their claims and testimony leaving this court to sort out what it believes is a reasonable evaluation of the facts in this case.
Kendall does not dispute Somers' claim of having obtained the following sums for her:
747
1) New Hampshire land sale (including interest) $313,723 2) Sale of guns and photo equipment 72,000 3) Court ordered alimony and counsel fees sent to Somers 22,440 4) Alimony and court ordered counsel fees sent to Kendall 228,611 5) Payments from Deming TOTAL $637,501The parties sharply disagree as to the amount of funds distributed to Kendall by Somers. The court has carefully examined the testimony and exhibits in this case and finds it lacking on the part of both Kendall and Somers.
The court has concluded however, that the evidence offered by Somers on this question is indeed, the better evidence, and preponderates in his favor despite its shortcomings, and therefore finds in favor of Somers on this issue.
The court finds that the evidence referred to by the defendant in support of her claim that Somers received a total of $812,552 from all sources on her behalf is neither authenticated or reliable (see Defendant's brief of 6/9/08, pages 2-4).
The court finds that Somers recovered a total of $631,501 on behalf of Kendall as proven by a preponderance of the evidence.
The court further finds that a reasonable fee due to Somers based on the benefits received by Kendall is $180,000, plus expenses of $24,719.
The plaintiff has enumerated many other benefits derived by Kendall from Somers' efforts (see plaintiff's brief of September 28, 2007, pages 2-5) which identifies the routine efforts and services rendered by Somers in performing his duties to obtain the dissolution of the marriage and recovery of assets from Kendall's husband. This court considered these services along with the actual funds recovered as acquired as these were "tasks reasonably undertaken in furtherance of the client's goals and the objectives provided in the retainer agreement." Somers Associates v. Busch, supra, p. 410, fn.13.
Inasmuch as Somers has already acknowledged that he received $273,758 (Plaintiff's brief 1/15/08, p 9), Kendall owes nothing on the note and mortgage and the court finds in her favor on the complaint.
THE SPECIAL DEFENSES
The first special defense filed by Kendall alleges malpractice in this case by Somers.
The malpractice alleged is that of excessive billing by Somers in the course of the dissolution and his failure to apprise Kendall of his impending disbarment.
While these allegations may have been true, there is insufficient evidence of actual legal malpractice suffered by Kendall. The court finds in favor of Somers on this special defense in that the defendant has failed to carry her burden of proof.
The second special defense asserted by Kendall is that of breach of contract in Somers' failure to carry out the terms of his retainer agreement. Under the holding in Busch, the court found such a breach but established the remedy of unjust enrichment to Somers. This court has and will limit Somers' remedy to the benefits conferred on Kendall in furtherance of Kendall's dissolution action. This opinion follows that mandate.
The third special defense, although entitled recoupment, is actually a claim of duress (fourth special defense), fraudulent misrepresentation (fifth special defense), and also unclean hands.
The court finds in addition to the previous finding that Somers has failed to prove the debt on the mortgage and further finds that the note and mortgage were obtained as a result of fraud, threats and duress.
Although Somers claims that the court (Kocay, J.) approved the terms of the mortgage, this court finds that Judge Kocay only approved that the mortgage could be executed by Kendall. Somers' Attorney, Gary Greene, agreed with this characterization of the approval on the record (TR. 1/25/06, p. 90), and in his brief of June 29, 2006, p. 37.
The evidence clearly shows that Somers threatened Kendall in persuading her to sign the mortgage. He said he would not turn over the file to her, that she would not be able to hire a new attorney, that he would cease working on her case and would withdraw from representing her. As a result of this, Kendall acquiesced in the execution of the mortgage.
Kendall has, in the opinion of this court, proven duress by sufficiently demonstrating a threat (wrongful in nature). The threat left her no reasonable alternative and to which she acceded, which result was unfair to her, the victim. Noble v. White, 66 Conn.App. 54, 59. 783 A.2d 1145 (2001).
The court therefore finds in favor of Kendall on the special defenses of duress.
THE COUNTERCLAIM (REVISED)
Kendall has, additionally, filed a counterclaim in five counts. They shall be discussed serially.
Count One — Legal Malpractice
The claim in this count of malpractice was discussed under the category of special defenses. The court therefore finds for the plaintiff on this count.
Count Two — Breach of Contract
Here again, this count was addressed in the court's opinion on breach of contract as a special defense. The court found in that count that Somers breached his retainer agreement contract through his own fault and was therefore disbarred. Kendall's remedy under Busch is damages limited to any overpayment to Somers of the benefits received by Kendall under the doctrine of unjust enrichment in furtherance of the contract's objective. Further discussion of those damages will be discussed below under "damages."
Count Three — CUTPA
Kendall's third count of her counterclaim alleges a violation of General Statutes § 42-110a, et seq., the Connecticut Unfair Trade Practices Act (CUTPA). The actions alleged were that Somers was unscrupulous in his actions, over-billed her, and was unfair and deceptive.
As such, an unfair or deceptive practice against an attorney is not cognizable under CUTPA unless it is based solely upon the entrepreneurial aspects of his business activities.
Beverly Hills Concepts, Inc. v. Schatz Schatz, Ribicoff Kotkin, 247 Conn. 48, 79, 717 A.2d 724 (1998). There is no evidence that the actions of Somers were in the category of entrepreneurial.
The court therefore, finds in favor of Somers on this count.
Count Four — Fraudulent Inducement
The court has previously discussed this allegation as a special defense and found the mortgage deed and debt unproven and so finds again in this count.
Count Five — Quiet Title CT Page 13747
This count seeks to quiet title to Kendall's home in Canterbury, Connecticut known as 136 Barstow Road. The title is encumbered on the land records by the mortgage from Kendall to Somers. Inasmuch as the court has ruled that there is no debt due to Somers under that mortgage, it is ordered released in accordance with this judgment. The plaintiff is to forward a release of mortgage to the defendant's attorney for recording in the Canterbury Land Records.Somer's Claim of Estoppel, Waiver and Judicial Estoppel
These claims made in Somers' brief of September 28, 2007 in support of his allegation that Kendall's mortgage is valid because of her agreement as to its validity is addressed here.
All three of these theories are based on assertions by Kendall that she accepts the debt as claimed and does not contest it. See Johnnycake Mountain Associates v. Achs, 104 Conn.App. at 209, 952 A.2d 472 (2007).
This court has found that Somers was able to obtain Kendall's agreement to sign the mortgage documents through fraud and duress. The conduct by Somers of fraud and duress would bar him from asserting the estoppel claims. See Emigrant Mortgage Corp. v. D'Agostino, 94 Conn.App. 793, 804 (2006). Consequently these claims by Somers are overruled by this court.
Damages and Reconciliation of the Accounts
Inasmuch as the court has found that Somers is entitled to a fee of $180,000 plus $24,719 expenses for his services to Kendall, the following is a recap of all payments due and paid to Somers together with all funds received and payments made by Somers as best this court could discern from the myriad of documents, records and testimony before it.
Without a doubt, the records kept by Somers were confusing, inaccurate, and in the opinion of the court, quite possibly deceptive. The court has made every effort to reconcile those records with the evidence with the added burden of distinguishing facts from guesses inasmuch as the credibility of both parties was often found to be lacking. The numbers found by the court represent the court's belief that those numbers represent the fair preponderance of the evidence on that particular issue.
While the court is unable to reconcile the account in this case as to the flow of money into it and out of it because of contradictory evidence on both sides and exhibits which were obviously inaccurate and unreliable, the court was able to decide the main issue in this case and make a finding as to what fee Somers is entitled to under the holding of Somers v. Busch. Inasmuch as the court has determined that this fee should be $180,000 plus expenses of $24,719 and inasmuch as Mr. Somers has previously drawn a fee of $273,758 there is due the defendant the sum of $93,758 less $24,719 for expenses or $69,039 because of her overpayment.
Judgment may accordingly enter for the defendant on the complaint and counterclaim.