Opinion
No. 115029460
July 22, 2011
MEMORANDUM OF DECISION
The plaintiffs, the Law Office of A. Reynolds Gordon and the law firm of Gordon and DeNicola, have brought this application for a prejudgment remedy for unpaid legal fees resulting from a decade long litigation in which the plaintiffs represented the defendant. The legal fees arise out of the plaintiffs' representation of the defendant in family litigation involving three properties. That litigation resulted in three appeals to the Appellate Court. See Gorelick v. Montanaro, 119 Conn.App. 785, 990 A.2d 371 (2010), Gorelick v. Montanaro, 94 Conn.App. 14, 891 A.2d 41 (2006), and Montanaro v. Gorelick, 73 Conn.App. 319, 807 A.2d 1083 (2002). Other appellate cases were also spawned by this internecine dispute, although they did not generate the attorneys fees involved in this proceeding. See Berty v. Gorelick, 59 Conn.App. 62, 756 A.2d 856, cert. denied, 254 Conn. 933, 761 A.2d 751 (2000), and Carpenter v. Montanaro, 52 Conn.App. 55, 725 A.2d 390 (1999).
"Alas, the tragic maxim, that you should never do business with family, rears its ugly head once again." New Century Mortgage Corp. v. McDonald, Docket No. 14859/06, 2011 NY Slip Op. 50299 (U) (N.Y.Sup. March 7, 2011).
In 2000, the defendant, Glenn Gorelick, individually and as trustee for his daughter, retained plaintiff Law Office of A. Reynolds Gordon to represent him in litigation involving three properties, which the parties refer to as the Southbury property, the fraudulent conveyance action and the Boston Avenue property. The plaintiffs claim relatively small amounts owing for services rendered in connection with the fraudulent conveyance action and the Southbury property. This application is principally brought to secure sums owing for services in connection with the Boston Avenue property.
The application for prejudgment remedy originally named as defendants Glenn Gorelick, individually and as trustee, and Gail Gorelick. Gail Gorelick is nonappearing in this action and the plaintiffs stated on the record at the hearing of their application that they are not claiming the prejudgment remedy against her. References to the defendant refer only to Glenn Gorelick, individually and as trustee.
The plaintiffs presented evidence that they rendered services in connection with the Boston Avenue litigation for which there remains a balance of $139,784.31, inclusive of prejudgment interest. The defendant disputes this amount on three grounds: the hourly rates on which the outstanding balance is based, the prejudgment interest that is included in the balance and the quality of the legal work.
"An attorney may maintain an action against his client for professional services . . ." Pierce v. Norton, 82 Conn. 441, 445, 74 A. 686 (1909). However, courts exercise "extreme caution where a lawyer brings a suit for legal fees against a client who, during part of the proceedings, appeared pro se." Solomon v. Cavanaugh, 9 Conn.App. 285, 289, 518 A.2d 663 (1986). Here, the defendant appears pro se.
The dispute concerning fees arises out of a large accounts receivable balance that the defendant had with the plaintiffs. Originally, the plaintiffs represented the defendant on the basis of $150 per hour for Attorney Gordon's time and $100 per hour for Attorney DeNicola's time plus, according to an April 25, 2000 letter agreement signed by the defendant, "a contingent fee of 15% of any recovery on the Bridgeport parcels over and above the amounts which Gail [Gorelick], or Glen [Gorelick] as Trustee, would receive out of the net proceeds of the $200,000 sale to Montanaro, if it were to go through without objection by anybody."
On May 10, 2005, Attorney Gordon wrote to the defendant observing that he had a large accounts receivable balance and stating that from May 12 forward, fees would be $300 per hour for his time and $180 per hour for Attorney DeNicola's time. Forgetting that he had sent this letter to the defendant, Gordon told the defendant following a September 2006 oral argument before the Appellate Court in Gorelick v. Montanaro, supra, 94 Conn.App. 14, that his fees would be raised in this manner. He corrected his oversight a week later with a letter to the defendant stating that he had been mistaken and that the new hourly rates were effective as of May 12, 2005.
There is no writing in which the defendant agreed to the new rates. Although the defendant testified that he verbally disputed the increase in rates, he paid them for several years. He produced no writing disputing the 2005 rates. The court finds that there is probable cause that he agreed to the new rates. Moreover, in light of Attorney Gordon's experience, skill, and sophistication in business related litigation, the new 2006 hourly rates are reasonable.
In 2006, a dispute arose between Attorney Gordon and the defendant over the rate at which interest ought to accrue on the defendant's outstanding balance. Attorney Gordon wanted interest to accrue at no less than 6 percent per annum. The defendant desired a lower interest rate. According to the defendant, Attorney Gordon "stormed" out of a meeting with him yelling "Don't get your lawyer mad!" The parties subsequently agreed in writing to 5 percent interest on the outstanding balance. The defendant claims he was frightened by Attorney Gordon's alleged behavior and was coerced into entering into this agreement.
"Contracts between attorney and client fall naturally into at least two categories: (1) those made before the relationship of attorney and client has commenced or after the relationship has terminated; and (2) those made during the relationship. The agreement between the plaintiff and the defendant, whatever it was, was made during the existence of the relationship. Courts of equity scrutinize transactions made between attorney and client during the existence of the relationship with great care and if there are doubts they will be resolved in favor of the client . . . Nevertheless, an attorney is not prohibited from contracting with his client respecting his fees, and a contract thus made after the commencement of the relationship of attorney and client is not per se void but will by reason of the confidential nature of the relationship be closely scrutinized by the court. No undue advantage can be taken of the relationship of attorney and client in order to procure such a contract; but where the parties are free to contract, their agreement should not be set aside or the agreed compensation withheld unless fraud has been perpetrated, undue influence exerted, material facts affecting the subject matter misrepresented or suppressed, or advantage taken of a position of confidence and trust to obtain an unconscionable advantage over the party, in which case a court of equity may grant relief from such oppression, and the attorney will be confined to a reasonable charge for compensation without regard to the attempted fixation of the value of his services . . .
"For a party to demonstrate duress, it must prove [1] a wrongful act or threat [2] that left the victim no reasonable alternative, and [3] to which the victim in fact acceded, and that [4] the resulting transaction was unfair to the victim. Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 549-50 n. 15, 661 A.2d 530 (1995). The wrongful conduct at issue could take virtually any form, but must induce a fearful state of mind in the other party, which makes it impossible for [the party] to exercise his own free will . . .
"Where a party insists on a contractual provision or a payment that he honestly believes he is entitled to receive, unless that belief is without any reasonable basis, his conduct is not wrongful and does not constitute duress or coercion under Connecticut law . . . and the fact that consent was given, or payment was made under protest does not establish duress." (Citations omitted; internal quotation marks omitted.) Noble v. White, 66 Conn.App. 54, 57-59, 783 A.2d 1145 (2001), on appeal after remand, 85 Conn.App. 233, 857 A.2d 362 (2004).
The defendant's claim of duress or coercion hinges on his statement that during a negotiation, Attorney Gordon "stormed" out of a meeting yelling "Don't get your lawyer mad!" If this occurred, it was conduct inconsistent with the standard required by Noble v. White, supra, 66 Conn.App. 57-59. However, the defendant was not a naive, uninitiated layman. He has a bachelor's degree in Business Administration (Marketing) from the University of Miami, a master's degree in psychology from Southern Connecticut State University, and credits toward a Ph.D. in psychology. He has been in the real estate business and developed property in Southbury and Bridgeport. He had been in litigation for years, attending court, dealing with lawyers, and even advising his lawyer on strategy.
The court finds that the defendant has not proven the elements of duress or coercion. As observed supra, while "[t]he wrongful conduct at issue could take virtually any form," it "must induce a fearful state of mind in the other party, which makes it impossible for [the party] to exercise his own free will." (Internal quotation marks omitted.) Noble v. White, supra, 66 Conn.App. 59. The defendant may have been upset that the only way he could maintain the private attorney of his choice was to accede to his attorney's demand as to the interest rate on the past balance. However, his consternation did not amount to an inability to exercise free will. The defendant was at all time free to retain a new lawyer. There was no showing that time was of the essence or that the litigation was at a critical stage. Moreover, the agreed upon 5 percent rate of interest was a full percentage rate less than what Attorney Gordon desired and was not unfair to the defendant.
Finally, the defendant complains that the quality of the plaintiffs' legal work does not justify the hourly rates claimed. Even where a client has agreed to an hourly rate, there are circumstances where a court may examine whether the work done is of such a quality that damages ought not be awarded based on that rate. See Allen v. Martin, 203 P.3d 546, 557 (Colo.App. 2008), cert. denied 2009 WL 501890 (Colo. 2009) ("an attorney's negligence is a defense to that attorney's claim for fees"); Saffer Willoughby, 143 N.J. 256, 272, 670 A.2d 527 (1996) ("Ordinarily, an attorney may not collect attorney fees for services negligently performed"); cf. Brackett v. Norton, 4 Conn. 517, 524-26 (1823).
The defendant testified that during the oral argument before the Appellate Court in Gorelick v. Montanaro, supra, 119 Conn.App. 785, Judge Beach pointedly asked Attorney Gordon, "Didn't you read the partnership agreement. It's very clear." Even assuming such a question was posed, it does not reflect on the quality of Attorney Gordon's legal work. Appellate judges often consider it invaluable to challenge a party's position aggressively on appeal. This is hardly a comment on the quality of the lawyer's work. Where an advocate must advocate that a writing is ambiguous, the appellate judge may assert that it is unambiguous and make the advocate justify his position. Thereby, the issues and arguments become sharper and more focused for the court.
The quotation is of the defendant's representation of what Judge Beach said. The court does not have a transcript of the actual argument before the Appellate Court.
On the other hand, the defendant complains that the quality of Attorney Gordon's work was unnecessarily high and, therefore, too expensive. He testified that Attorney Gordon was filing "fluffy Harvard Law motions" while the other side was filing a one-page pleading and winning. The court is not persuaded.
The court observes that the plaintiffs maintained detailed, itemized records. "Because the fees requested are voluminous, this Court is not required to engage in an hour-by-hour analysis. Loranger v. Stierheim, 10 F.3d 776, 783 (11th Cir. 1994); Trujillo v. Banco Central del Ecuador, 229 F.Sup.2d 1369, 1375 (S.D.Fla. 2002); cf. Norman [v. Housing Authority of City of Montgomery], 836 F.2d 1292, 1301 (11th Cir. 1988)]." Padurjan v. Aventura Limousine Transportation Service, Inc., United States District Court, Docket No. 08-20128-CIV (S.D.Fla. December 2, 2009). Nonetheless, from the court's cursory review of the records, the fees charged appear reasonable.
General Statutes § 52-278d(a) provides, in relevant part, that a hearing on a prejudgment remedy "`shall be limited to a determination of (1) whether or not there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff . . . If the court, upon consideration of the facts before it and taking into account any defenses, counterclaims or set-offs . . . finds that the plaintiff has shown probable cause that such a judgment will be rendered in the matter in the plaintiff's favor in the amount of the prejudgment remedy sought and finds that a prejudgment remedy securing the judgment should be granted, the prejudgment remedy applied for shall be granted as requested or as modified by the court.'"
"The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim . . . The court's role in such a hearing is to determine probable success by weighing probabilities . . . Calfee v. Usman, 244 Conn. 29, 37, 616 A.2d 250 (1992). Probable cause for purposes of the [prejudgment remedy] statutes is a flexible common sense standard that does not demand that a belief be correct or more likely true than false . . . Fischel v. TKPK, Ltd., 34 Conn.App. 22, 24, 640 A.2d 125 (1994). In acting on a prejudgment remedy motion, the trial court must evaluate the arguments and evidence produced by both parties to determine whether there is probable cause to sustain the validity of the plaintiffs' claim . . . [T]he trial court, vested with broad discretion, need determine only the likely success of the plaintiffs' claim by weighing probabilities . . . Haxhi v. Moss, 25 Conn.App. 16, 18-19, 591 A.2d 1275 (1991); J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 628-30, 356 A.2d 893 (1975). Civil probable cause constitutes a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a person of ordinary caution, prudence and judgment, under the circumstances, in advancing the action. One Fawcett Place Ltd. Partnership v. Diamandis Communications, Inc., 24 Conn.App. 524, 525, 589 A.2d 892 (1991)." (Citations omitted, internal quotation marks omitted.) Dunleavey v. Paris Ceramics USA, Inc., 47 Conn.Sup. 565, 569, 819 A.2d 945 (2002).
Considering the evidence in light of this standard, the court grants the plaintiffs' application and orders that a prejudgment remedy issue in the amount of $165,000, inclusive of prejudgment interest.