Opinion
No. CV-09-5007173-S
July 13, 2010
MEMORANDUM OF DECISION RE RULING ON PLAINTIFF'S MOTION FOR ATTORNEYS FEES (#134)
The plaintiff seeks attorneys fees pursuant to Practice Book § 10-5, claiming that the defendant's April 16, 2010 answer to the complaint contains "knowing and willful misrepresentations of fact." For the following reasons, the plaintiff's motion is denied.
In response to an allegation that the defendant is a "domestic business licensed to transact business in the State of Connecticut, and . . . did in fact transact business within the State of Connecticut," the defendant answered that it lacked "sufficient information upon which to form a belief," and left the plaintiff to his proof. In response to a separate allegation that the defendant "has only paid one-hundred and forty [sic] thousand, eight-hundred and forty dollars ($140,840)," the defendant again answered that it lacked "sufficient knowledge or information upon which to form a belief," and therefore left the plaintiff to his proof. The plaintiff claims that defendant's interrogatory responses, filed approximately two weeks after the defendant's answer, include responses which admit that the defendant is a corporation and that the corporate officers live in Connecticut. The responses further indicate that "$151,665.00 was paid to the plaintiff for his services."
In light of these responses, and the defendant's subsequent failure to revise its answers, the plaintiff seeks attorneys fees pursuant to Practice Book § 10-5. Practice Book § 10-5 provides in relevant part, that "[a]ny allegation or denial made without reasonable cause and found untrue shall subject the party pleading the same to the payment of such reasonable expenses, to be taxed by the judicial authority, as may have been necessarily incurred by the other party by reason of such untrue pleading; provided that no expenses for counsel fees shall be taxed exceeding $500 for any one offense."
The plaintiff acknowledges in his motion that, with regard to the jurisdictional allegation, the issue is not of great moment. "The allegation in question was merely a jurisdictional and venue establishing allegation, which is not or is no longer at issue." The defendant responds to the motion for attorneys fees by claiming that a defendant is "obviously" entitled to leave a plaintiff to his proof on jurisdictional matters and that the issue is moot.
In some respects, both parties are in error. The sanctions of Practice Book § 10-5 apply when a denial made without reasonable cause and found to be untrue causes the opponent to have incurred "reasonable expenses" by reason of the untrue pleading. In addition to such expenses, counsel fees shall be taxed. Here, the plaintiff makes no claim that he suffered any expense as a result of the untrue pleading. He acknowledges that he quickly acquired the information that he needed, in the context of interrogatory responses that the defendant filed two weeks after its answer was filed. Practice Book § 10-5 is plainly intended to avoid unnecessary expense to a party as a result of an untrue denial. Such expense is a condition precedent to the award of counsel fees. Here, the only expense that has arisen is the product of the unnecessary filing of the plaintiff's motion and the defendant's need to reply to that motion.
Nonetheless, although the defendant's untrue denial did not cause unnecessary expense to the plaintiff, the defendant is mistaken about its belief that it can freely file what is, in effect, a denial; see Postemski v. Watrous, 151 Conn. 183, 185, 195 A.2d 425 (1963); with regard to jurisdictional allegations. The Practice Book contemplates good faith pleading on the part of counsel. See Practice Book § 10-46. It does not confer license upon a litigant to deny or plead no knowledge to any allegation, jurisdictional or otherwise, that the litigant knows to be true.
In this case, the plaintiff quickly obtained the necessary admission from the defendant in the form of a subsequent pleading, and there is no showing that the plaintiff incurred unnecessary expense in the course of the two weeks that passed from the filing of the answer to the filing of the interrogatory responses. Consequently, Practice Book § 10-5 does not apply with regard to this first issue.
The plaintiff's second claim is similar to the first and is similarly resolved. The plaintiff asserted, in count one paragraph eight of his complaint, that "the defendant has only paid one hundred and forty thousand eight hundred and forty ($140,840)." The defendant, in his answer, again left the plaintiff to his proof. In his May 3, 2010 answers to interrogatories, the defendant asserted that $151,665 was paid to the plaintiff.
Thus, the plaintiff has the admission that he sought, and he does not claim to have incurred unnecessary expense as a result of the defendant's answer. As a result, Practice Book § 10-5 does not support the plaintiff's motion, and the plaintiff's motion is denied.