Opinion
HHDCV136045900S
03-18-2016
Sharay Freeman v. A Better Way Wholesale Autos, Inc
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR ATTORNEYS FEES (#136)
Sheila A. Huddleston, J.
The plaintiff, Sharay Freeman, seeks attorneys fees and costs pursuant to the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., following a court trial in which the court found the defendant, A Better Way Wholesale Autos, Inc., liable for a violation of CUTPA in connection with its practice regarding the refund of her deposit. See Memorandum of Decision dated April 1, 2015 (Entry No. 132). The court awarded the plaintiff $2,500 in compensatory damages, $7,500 in punitive damages, and pre- and postjudgment interest. Id. On April 20, 2015, the defendant filed a motion for reconsideration, which the court denied after a hearing. See Order, Entry. No. 133.87. The plaintiff filed a timely motion for attorneys fees on April 30, 2015, to which the defendant objected. The plaintiff filed a supplemental affidavit and brief in response to the defendant's objection. A hearing was held on the motion for attorneys fees on November 23, 2015.
The plaintiff seeks $32,000 in attorneys fees and costs. Her motion was supported by an affidavit by her counsel, Daniel S. Blinn, to which was attached his billing records for the case. When the defendant objected that the billing records identified only $19,720 in fees billed by Attorney Blinn and an additional $14,890 in fees billed by others in his office, who were identified only by initials in the billing records, Attorney Blinn submitted a supplemental affidavit identifying three of the individuals who had worked on the case and explaining their qualifications. The plaintiff also submitted an affidavit by Attorney Joanne Faulkner. At the hearing on the motion for attorneys fees, the defendant objected to consideration of Attorney Faulkner's affidavit as hearsay, and that objection was sustained. The court did not consider Attorney Faulkner's affidavit in its consideration of the attorneys fees. The defendant did not object to consideration of Attorney Blinn's affidavit and did not seek to cross examine Attorney Blinn.
The defendant did not take issue with specific items of billing by Attorney Blinn's office, but argued that an award of the requested $32,000 in fees and expenses would be egregiously disproportionate to the actual compensatory damages of $2,500 recovered by the plaintiff. The defendant also argued that the fees of $400 per hour for Attorney Blinn and $250 per hour for his associate were unreasonably high, and that the aggregate number of hours spent by plaintiff's counsel in preparing the case for a one-day trial was excessive.
General Statutes § 42-110g(d) provides in relevant part: " In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys fees based on the work reasonably performed by an attorney and not on the amount of recovery." As courts have repeatedly observed, " The public policy underlying CUTPA is to encourage litigants to act as private attorneys general and to engage in bringing actions that have as their basis unfair or deceptive trade practices . . . In order to encourage attorneys to accept and litigate CUTPA cases, the legislature has provided for the award of attorneys fees and costs." (Citation omitted; internal quotation marks omitted.) Jacques All Trades Corp. v. Brown, 42 Conn.App. 124, 130-31, 679 A.2d 27 (1996), aff'd, 240 Conn. 654, 692 A.2d 809 (1997). " Whether an award is to be made and the amount thereof lie within the discretion of the trial court, which is in the best position to evaluate the particular circumstances of a case . . . A court has few duties of a more delicate nature than that of fixing counsel fees." (Internal quotation marks omitted.) Krack v. Action Motors Corp., 87 Conn.App. 687, 694, 867 A.2d 86, cert. denied, 273 Conn. 926, 871 A.2d 1031 (2005).
" [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 [outlined in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)] . . . The Johnson factors may be relevant in adjusting the lodestar amount, but no one factor is a substitute for multiplying reasonable billing rates by a reasonable estimation of the number of hours expended on the litigation." (Footnote omitted; internal quotation marks omitted.) Carrillo v. Goldberg, 141 Conn.App. 299, 317-18, 61 A.3d 1164 (2013).
" The Johnson court set forth twelve factors for determining the reasonableness of an attorneys fee award, and they are: the time and labor required; the novelty and difficulty of the question; the skill requisite to perform the legal services properly; the preclusion of other employment by the attorney due to acceptance of the case; the customary fee; whether the fee is fixed or contingent; time limitations imposed by the client or the circumstances; the amount involved and the results obtained; the experience, reputation, and ability of the attorneys; the 'undesirability' of the case; the nature and length of the professional relationship with the client; and awards in similar cases." Laudano v. New Haven, 58 Conn.App. 819, 823 n.9, 755 A.2d 907 (2000).
Attorney Blinn's billing records report 136.5 hours spent on this matter by Attorney Blinn (52.5 hours), Attorney Hailey Gallant Rice (39.1 hours), paralegal Lori Miner (40 hours), legal assistant Dora Fernandez (4.3 hours), and an unidentified person, " DS, " (0.6 hours). From that time, Attorney Blinn subtracted 21.5 hours, representing essentially all the time spent in a prior action filed in federal court, which the plaintiff voluntarily dismissed. The court has carefully reviewed the individual billing entries submitted and has determined that they involve some apparent duplication of effort (particularly with depositions) and some excessive time by an associate in preparing for and attending a pretrial conference. In addition, some of the work performed by Attorney Blinn's paralegal was secretarial in nature, such as calendaring court dates and copying documents. After deducting time for the federal suit and the additional areas of excessive time just described, the court finds that Attorney Blinn reasonably expended 46.6 hours in representing the client in this case; Attorney Rice reasonably expended 24.4 hours; paralegal Miner reasonably expended 29.2 hours on tasks requiring a paralegal's skill and training; and legal assistant Dora Fernandez reasonably expended 2.3 hours.
The court next turns to the appropriate hourly rates to be applied. In considering appropriate rates, the court considers Attorney Blinn's affidavit, the court's own knowledge of the marketplace, and the court's consideration of reported attorney fee awards in similar cases in recent years.
Attorney Blinn requests a fee of $400 per hour for his time. He is a knowledgeable and well-respected consumer law advocate with more than twenty-eight years of experience. He attests that he has brought over 800 actions involving auto dealerships over the course of his career. While recognizing the value of his knowledge and experience, the court finds that the requested fee of $400 is somewhat high. The court observes that relatively recent awards of attorneys fees to Attorney Blinn, in particular, have been in the range of $300 to $375 per hour. See, e.g., Gomez v. People's United Bank, United States District Court, Docket No. 3:10-CV-00904 (CSH), (D.Conn. September 5, 2012) (awarding Attorney Blinn fees at $325 per hour rather than the requested $375 per hour based on survey of other cases); O'Connor v. AR Resources, Inc., United States District Court, Docket No. 3:08CV1703 (VLB), (D.Conn. January 4, 2012) (surveying fees awarded to Attorney Blinn in the range of $300-$362 per hour in consumer cases; awarding fees based on a rate of $325 per hour for representation in a class action). The court finds that $375 is a reasonable hourly rate for Attorney Blinn.
Attorney Rice graduated from the University of Connecticut School of Law in 2012, was admitted to practice in November 2012, and consequently was in her first and second years of practice when she worked on this case. The court finds that the requested fee of $250 per hour for her time is somewhat high for an associate attorney with less than two years of experience and that a fee of $195 per hour is reasonable.
A rate of $150 per hour is requested for Lori Miner, a paralegal with an associate's degree in paralegal studies and twenty-five years of experience. The court finds that $125 per hour is a reasonable rate for a paralegal with similar training and experience. The rate of $95 per hour for Dora Fernandez, a legal assistant with ten years of experience, is approved. The court does not award any fees for " DS, " who was not identified in Attorney Blinn's affidavit.
Multiplying the hourly rates that the court finds to be reasonable by the hours the court finds to have been reasonably expended, the court reaches a lodestar figure of $26,101.50 in fees. The court has considered each of the Johnson factors for which any evidence was presented and concludes that no adjustment to the lodestar amount is warranted. That is, while some of the Johnson factors might warrant an increase in the lodestar amount, others might warrant a reduction. Attorney Blinn represented that the case was taken on a contingency fee basis and further argued that he is one of only two lawyers in the state who would consider taking such a case, because the small amount at issue makes the case undesirable to most attorneys. These factors tend to support an increase in the lodestar amount. But this was not a legally or factually complex case. It was tried in a single day. Its relative simplicity tends to support a reduction in the lodestar amount. Weighing all the factors, the court concludes that the lodestar amount is appropriate.
The defendant argues that the attorneys fees are extremely punitive in relation to the modest amount recovered as actual damages and the punitive damages already imposed. The court, however, is guided by the express language of CUTPA, which requires that an award of costs and attorneys fees is to be " based on the work reasonably performed by an attorney and not on the amount of recovery." General Statutes § 42-110g(d). The purpose of CUTPA's attorneys fee provision is to assure that consumers with modest claims and modest means will be able to find attorneys willing to take on their cases. It is not uncommon, in cases involving fee-shifting statutes, to find that reasonable attorneys fees exceed the damages awarded by a substantial amount. See, e.g., Krack v. Action Motors Corp., supra, 87 Conn.App. 687 (affirming attorneys fee award of $38,626 where damages were only $9,715.10); Lee v. Stanziale, 161 Conn.App. 525, 128 A.3d 579 (2015) (affirming attorneys fee award of $14,750 where damages were only $4788.01), cert. denied, 320 Conn. 915 (2016). Indeed, the Appellate Court has found an abuse of discretion where a trial court has dramatically reduced attorneys fees from the lodestar amount in a CUTPA case. See Carrillo v. Goldberg, supra, 141 Conn.App. 317-18 (reversing trial court's award of $2,500 in attorneys fees where the plaintiff testified that he had paid approximately $35,000 in attorneys fees).
The court observes, moreover, that a substantial portion of the time expended by the plaintiff's counsel resulted from the defendant's failures and strategic decisions. First it failed to file a timely answer, which prompted a motion for default for failure to plead; then it failed to respond to discovery requests in a timely fashion, requiring motions for compliance and default; then it failed to move to open the default until the plaintiff had already prepared for a hearing in damages. After the court issued its decision, the defendant moved for reconsideration and objected to the court's hearing of the motion for reconsideration at the same time as the motion for attorneys fees. While the defendant certainly had a right to defend the case as it saw fit and to reject the plaintiff's modest settlement offers, the plaintiff's counsel reasonably expended effort to keep the case moving forward and to respond to the defenses when they were proffered.
Finally, the court addresses the plaintiff's request for costs. After deducting costs associated with the voluntarily dismissed federal action, the plaintiff seeks $1810.03 in expenses. A substantial portion of the claimed expenses are for such expenses as postage, faxing, copying, and electronic research expenses. Such expenses are not properly taxable as costs. See Taylor v. King, 121 Conn.App. 105, 133-35, 994 A.2d 330 (2010) (no statutory authority for expert witness fees under CUTPA other than fees taxable under General Statutes § 52-260); Metcoff v. NCT Group, Inc., 52 Conn.Supp. 363, 387, 50 A.3d 1004 (2011) (nontaxable costs not available under CUTPA), aff'd, 137 Conn.App. 578, 49 A.3d 282, cert. denied, 307 Conn. 924, 55 A.3d 566 (2012). The plaintiff did not file a bill of costs that identifies properly taxable costs. In the absence of a bill of costs, the plaintiff has failed properly to present her claim for costs, and the court declines to search through plaintiff's counsel's expense records in an effort to determine which expenses might be taxable under the statutes governing costs. Accordingly, the request for costs is denied.
In summary, the plaintiff is awarded attorneys fees of $26,101.50 for the time reasonably expended by her counsel. The request for expenses is denied.