Lavoie v. Hoffman of Hartford, Inc.

Full title: JEANNETTE K. LAVOIE ET AL. v. HOFFMAN OF HARTFORD, INC. DBA HOFFMAN LEXUS

Court: Connecticut Superior Court Judicial District of Hartford at Hartford

Date published: Mar 15, 2006

2006 Ct. Sup. 5062 (Conn. Super. Ct. 2006)

Opinion

No. CV 04-0833396S

March 15, 2006

MEMORANDUM OF DECISION

ROBERT F. STENGEL, JUDGE.

I

The plaintiffs Jeannette K. Lavoie and Elie Lavoie initiated the present action against the defendant Hoffman of Hartford, Inc. by complaint dated March 9, 2004.

The plaintiffs purchased a used Lexus from the defendant in December of 2001; they subsequently became dissatisfied with the vehicle and consulted and retained the Consumer Law Group ("CLG") to pursue their claim against the defendant.

The plaintiffs sought to recover monetary damages under three legal theories, implied warranty of merchantability, federal warranty law (Magnuson-Moss Federal Warranty Act) and Connecticut Unfair Trade Practices Act.

Before the case was tried to a jury, counsel for the parties appeared before Attorney Arthur Feinstein in April of 2005 for a court-mandated arbitration trial. In a written memorandum of decision, Mr. Feinstein found for the defendant on each of the counts alleged. The plaintiffs thereafter requested a trial de novo.

Shortly after the complaint was filed, the pleadings were closed and the case was claimed for a jury trial by the defendant. In August of 2004, the plaintiffs filed an offer of judgment for the amount of $18,000.

After five days of jury selection, the trial started October 5, 2005 and concluded October 7, 2005. The jury deliberated over two days and found for the plaintiff only on the CUTPA claim in the amount of $6,300, and found for the defendant on the claims of implied warranty and Magnuson-Moss.

Because the plaintiffs prevailed on their CUTPA claim, they now seek attorneys fees and costs pursuant to the Act and because the defendant prevailed on the claims for implied warranty and Magnuson-Moss, it seeks attorneys fees pursuant to § 42-180. The issues of attorneys fees came before the court on two separate days of hearings. Both law firms provided time sheets and have filed memorandums of law of the issues involved. Mr. Blinn also submitted CLG's contract for legal services.

II. The Plaintiffs' Motion for Attorneys Fees

The plaintiffs' claim for attorneys fees and cost is brought pursuant to Connecticut General Statute § 42-110g. The plaintiffs seek $67,500 in attorneys fees and $3,139.75 in costs.

Section 42-110g provides for an award of costs and reasonable attorneys fees based on the work reasonably performed by an attorney and not on the amount of recovery.

The seminal case in this area is Hensley v. Eckerhart, 461 U.S. 424. Hensley notes that a request for attorneys fees should not result in a further major litigation. Ideally the litigants will settle this issue; if not, the applicants have the burden of proof to establish entitlement to an award.

The Hensley court indicated that to be entitled to attorneys fees the party so seeking must be the prevailing party. Hensley also indicates that the most useful starting point for the determination of attorneys fees is to multiply the number of hours reasonably expended in the litigation by a reasonable hourly rate, the so called "lodestar figure."

Hensley refers to Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, which sets out 12 guidelines to be considered in determining attorneys fees.

The 12 factors 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 employment by the attorney due to acceptance of the case; (5) the customary fee; (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.

Connecticut has adopted the rationale of Johnson in Steiger v. J.S. Builders, 39 Conn.App. 32. Steiger makes reference to the 12 guidelines to be considered and notes that said guidelines are appropriate in CUTPA litigation in calculating reasonable attorneys fees.

Consumer Law Group has filed billing statements totaling 393 hours at an hourly rate for Mr. Blinn at $300 per hour. CLG's contract for legal services provides for a contingent fee which indicates that the plaintiffs will not be responsible to pay anything more for fees unless a benefit is obtained. If a recovery is made, the total fee will be the value of CLG's time, which is based on hourly rates. The contract states "you understand that the amount that we receive for attorneys fees may be significantly more than the amount that you receive for yourself." An hourly rate schedule attached to the contract shows the hourly rate for Daniel Blinn to be $300 and for Matthew Theriault $175.

At the hearings, Mr. Blinn reduced the hours claimed to 355 hours and reduced his demand for a fee of $79,647 to $67,500. Mr. Vossler, the attorney for the defendant, acknowledged that his expenditure of hours was in the same range as Mr. Blinn's, however, he charged an hourly rate of $135. He indicated that he charged his client $43,983 up to November 2005 to defend this case.

The defendant also points out that based on their analysis of plaintiffs' billing, $1,322.50 is claimed for non-attorney assistance by individuals referred to as CG, JS, LAS, MO and TW, and that the fee of CLG should be reduced by $1,322.50. In examining the contract for legal services hourly rate schedule, the initials indicated do not appear to be attorneys.

Since both attorneys have expended about the same number of hours, the court will find that the number of hours expended in this case are reasonable. However, as to the hourly rates, Mr. Blinn charged $300 per hour and Mr. Vossler $135. In this regard it is noted that Mr. Blinn indicated that most of the work done prior to trial was done by Mr. Theriault, whose charge was $175 per hour. Also as to the issue of whether there was a duplication of efforts by Mr. Blinn and Mr. Theriault, Mr. Blinn indicated that Mr. Theriault's efforts at trial were at a charge of $3,200. Because of these factors and weighing the 12 factors outlined in Johnson, the court believes that the lodestar computation should be reduced.

In considering the 12 factors outlined in Johnson, the court notes their relevance as to the amount found to be a reasonable fee. For example, it is found that issues, though interesting, are not particularly novel or complex and for a firm that specializes in consumer litigation, the issues are routine. There was no evidence that other employment was foreclosed to CLG by taking on this case. The court has considered that CLG specializes in consumer litigation. The court considered the amount involved and the results obtained. In this case, the plaintiffs only prevailed on their CUTPA claim. The other factors do not affect the result one way or the other.

The defendant contends that the plaintiffs were the prevailing parties only on the CUTPA claim and not on the theory of implied warranty and Magnuson-Moss and therefore CLG should receive fees relative to the prosecution of only the CUTPA claim. On this issue, Hensley holds that the degree of success on the merits is a critical factor to consider.

In this case the plaintiffs' complaint is in three separate causes of action. In the first count for breach of implied warranty of fitness, the plaintiffs allege that the vehicle was not in a merchantable condition because it was not fit for the purpose for what it was intended. In the second count asserting the Magnuson-Moss Act, it is alleged that it is not possible for the defendant to cure the breach of implied warranty of merchantability. And in count three alleging CUTPA, the plaintiffs assert that the defendant has committed unfair and deceptive acts. This pertains to the conduct of the defendant rather than the condition of the car. The evidence showed that the conduct of the defendant did not affect the safety or performance of the car. In fact the plaintiffs drove the car for some time before asserting their claim.

The jury verdict form shows that the jury found the following:

Do you find that the vehicle that the defendant sold to the plaintiffs was fit for the ordinary purpose for which vehicles are used at the time of purchase? The jury answered yes.

Do you find that the defendant's unfair or deceptive act or acts were committed with a reckless indifference to the plaintiffs' rights or were committed intentionally? The jury answered no.

As indicated, Hensley holds that to be entitled to an award of attorneys fees one must be the prevailing party. The degree of success on the merits is an important factor as to this issue. In this case the plaintiffs prevailed only on the CUTPA claim and indeed it is the CUTPA statute that provides for an allowance of attorneys fees. Because plaintiffs prevailed on one of three counts alleged, it achieved only limited success.

On this issue, the defendant cites the Superior case of Stuart v. Stuart, 2005 WL 590433, where the court allocated a portion of fees to successful CUTPA claims. The trial court in Stuart referring to Hensley stated,

The Hensley court determined that where a party succeeded on only some of his claims for relief, a court must answer the question whether the failed claims were related or unrelated to the successful claims. It went on to state:

In some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories. In such a suit, even where the claims are brought against the same defendants . . . counsel's work on one claim will be unrelated to his work on another claim. Accordingly, work on an unsuccessful claim cannot be deemed to have been expended in pursuit of the ultimate result achieved. The congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim.

The court finds that the plaintiffs achieved only modest results by prevailing only on the CUTPA claim. Also the court finds that the failed claims are not related to the CUTPA claim. The failed claims have to do with the condition of the car, whereas the CUTPA claim has to do with the conduct of the defendant.

In making its determination of the fee to be awarded for prevailing on the CUTPA claim, the court started with the lodestar approach and notes the difference in fees charged from Mr. Blinn at $300 per hour, to Mr. Theriault at $175 per hour to Mr. Vossler's charge of $135 per hour. The court observes that most of the pretrial work was not done by Mr. Blinn and that there was a duplication of efforts by Mr. Blinn and Mr. Theriault for the trial amounting to fees of $3,200 for Mr. Theriault's attendance at the trial.

The court has considered the 12 factors outlined in Johnson. The court also has taken into account that the plaintiffs asserted three separate causes of action and only prevailed on the CUTPA claim which allows the claim for attorneys fees. The court is also aware of the public policy favoring attorneys fees in order to enforce the CUTPA purposes.

Based on all the relevant factors and circumstances, the court awards plaintiffs attorneys fees in the amount of $20,000.

The plaintiffs also seek costs in the amount of $3,139.75 pursuant to Connecticut General Statutes § 42-110g. However, the defendant argues that costs are not defined in the statute and that § 52-257 and § 52-260 do provide what costs are available to a successful party. In Miller v. Guimaraes, 78 Conn.App. 760, the Appellate Court held that the trial court improperly awarded costs for an expert who testified as to the issue of reasonable value of attorneys fees in a CUTPA claim. The statute is silent as to the definition of costs and the plaintiffs have not met their burden of proof that fees for an expert witness are allowed within the meaning of costs in Connecticut General Statutes § 42-110g.

Therefore, the court disallows the expert witness fee of $3,000 requested for their expert, Kenneth Klein.

III. The Defendant's Motion for Attorneys Fees

The defendant seeks attorneys fees pursuant to Connecticut General Statutes § 42-180, said section provides:

In any action by a consumer against the manufacturer of a motor vehicle, or the manufacturer's agent or authorized dealer, based upon the alleged breach of an express or implied warranty made in connection with the sale or lease of such motor vehicle, the court, in its discretion, may award to the plaintiff his costs and reasonable attorneys fees, or if the court determines that the action was brought without any substantial justification, may award costs and reasonable attorneys fees to the defendant.

Plaintiffs make two arguments in opposition to defendant's motion, first § 42-180 does not apply to the instant case and that if it did apply the standard of "without any substantial justification" is a high standard and that the defendant has not met its burden of proof as to show that the action was brought without any substantial justification.

The court finds that under the facts and circumstances of this case the defendants have not established that the cause of action in counts one and two were brought without any substantial justification. In fact the court finds that the claims brought in counts one and two were reasonably brought.

Therefore, the defendant's request for attorneys fees and costs is denied.

Conclusion

The plaintiff's motion for an award of attorneys fees is granted to the extent discussed above. The plaintiffs are awarded attorneys fees in the amount of $20,000. Their request for $3,000 costs for their expert is denied.

The defendant's request for attorneys fees is denied.