Opinion
No. CV06-5000994 S
February 24, 2009
MEMORANDUM OF DECISION RE ATTORNEYS FEES AND COSTS
On December 8, 2008, the court filed its memorandum of decision relative to the plaintiffs' claim of a breach of contract and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42a-110b, on the part of the defendants for home improvement and construction work done at the plaintiffs' residence at 261 Wilton Road West, Ridgefield, Connecticut. In that decision the court awarded damages in favor of the plaintiffs and against the defendants Chrisdon Builders, Donna Diacri and Christopher Diacri and directed that a hearing be held on the issue of the awarding of attorneys fees and the assessment of costs. That hearing was held before the court on January 20, 2009. Both parties were given an opportunity to file briefs on the issue of attorneys fees and costs. The plaintiffs filed their memorandum of law on February 2, 2009 and the defendants submitted theirs on February 13, 2009.
A ATTORNEYS FEES
The plaintiffs have filed an affidavit, dated January 5, 2009, with an appended itemized statement claiming attorneys fees of $55,320 for work done between March 22, 2006 and January 5, 2009. Plaintiff Kenneth Meagher is an attorney admitted to practice in the state of Connecticut and appeared pro se in the matter. Initially, plaintiff Bethilda Meagher, the spouse of Kenneth Meagher appeared pro se. However, on November 15, 2006, Kenneth Meagher filed an appearance in lieu of his wife's appearance and thereafter acted as counsel for her during the course of the proceeding. There was no retainer agreement between them indicating either the scope of Kenneth Meagher's work or the fee arrangement for his representation. At the hearing, Kenneth Meagher testified that he performed 276.6 hours of work on the matter and that the work was valued at $200 per hour. He also testified that during the pendency of this matter he worked as an in-house counsel for an insurance company but lost no income from work as he was paid his full salary. He did, however, have to use some of his vacation time to be available to prosecute the case. He acknowledged that neither he nor his wife were billed for, or actually expended, any counsel fees.
The plaintiffs' claim for the recovery of attorneys fees under CUTPA must be reviewed under General Statutes Section 42-110g(d) which provides in relevant part that "[i]n any action brought by a person [pursuant to CUTPA], the court may award costs and reasonable attorneys fees based on the work reasonably performed by an attorney and not on the amount of recovery. Because an award of attorneys fees under this statute is not a matter of right, we have held that [w]hether any 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." (Citation omitted; internal quotation marks omitted.) New England Custom Concrete, LLC v. Carbone, 102 Conn.App. 652, 667, 927 A.2d 333 (2007).
The plaintiffs have acknowledged that there was no written fee agreement between Kenneth Meagher and his wife relative to his representation of her in this matter. The court notes that Rule 1.5(b) of the Rules of Professional Conduct reads as follows: "The scope of the representation, the basis or rate of the fee and expenses for which the client will be responsible, shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate." "The use of the verb `shall' carries with it the thrust of the imperative." Kantrovitz Brownstein v. Ruotolo, Superior Court, judicial district of New Haven, Docket No. CV 95 0371252 (December 20, 1996, Burns, J.T.R.).
The court recognizes that because the plaintiffs were husband and wife it would seem to be unnecessary to execute a written fee agreement between them. However, nowhere in the rule does there appear an exception for such a relationship. During the hearing, and in their brief, the plaintiffs pointed out that the commentary to the rule excused a written agreement where the attorney had regularly represented the client in the past and that as a result the relationship had evolved to the point where the rates charged and scope of representation were understood between them. Kenneth Meagher claimed that he had represented his wife in the past for the purchase and refinancing of their home, as well as the defense of a collection action. However, he acknowledged that the collection action arose out of the instant matter and that he had never charged her a fee in any of those previous matters. Even accepting plaintiffs' argument as true, if the logic of the rule were to be consistently applied, it would allow the lack of a written agreement to be excused in this instance provided that no fee was charged by him. Hence, even if no written fee agreement was required, the plaintiffs' recovery of fees would be zero absent some other authority under which fees might be awarded.
The commentary to Rule 1.5(b) states in relevant part that "[w]hen the lawyer has regularly represented a client, the lawyer and the client ordinarily will have evolved an understanding concerning the basis or rate of the fee and the expenses for which the client will be responsible. In a new client-lawyer relationship, however, an understanding as to fees and expenses must be promptly established. Generally, it is desirable to furnish the client with at least a simple memorandum or copy of the lawyer's customary fee arrangements that states the general nature of the legal services to be provided, the basis, rate or total amount of the fee and whether and to what extent the client will be responsible for any costs, expenses or disbursements in the course of the representation. A written statement concerning the terms of the engagement reduces the possibility of misunderstanding. Absent extraordinary circumstances the lawyer should send the written fee statement to the client before any substantial services are rendered, but in any event not later than ten days after commencing the representation."
In determining whether fees should be awarded it is significant to the court that the plaintiffs conceded that although Kenneth Meagher acted as counsel to his wife for part of the proceedings, there was no actual expenditure incurred by either of them for attorneys fees. Further, Kenneth Meagher, though an attorney, did not lose any income as a result of his acting as counsel to his wife in the matter. It has been held in various settings that a pro se litigant is not entitled to attorneys fees. Dunn v. Leepson, P.C., 79 Conn.App. 366, 372, 830 A.2d 325, cert. denied 266 Conn. 923, 835 A.2d 472 (2003). "Courts have reasoned, among other things, that the purpose of an award of attorneys fees is to allow a party to obtain counsel rather than to compensate litigants for their time, and that, without statutory authorization for such fees, such an award is improper." (Citation omitted; emphasis added.) Lev v. Lev, 10 Conn.App. 570, 575, 524 A.2d 674 (1987). Here, there was no evidence that either plaintiff had expended any funds toward the retention of counsel to represent them or otherwise assist or advise them relative to this action. The affidavit of fees submitted by Kenneth Meagher was based simply on the time spent on the matter calculated at a rate of $200 per hour. From the testimony presented at the hearing, the rate was established by his conversation with some other attorneys, none of whom were identified or presented testimony in court as to the reasonableness of the rate for the work done.
Kenneth Meagher further argues that though not an attorney who earned income on a fee basis, his work as an in-house counsel still entitled him to be compensated at a reasonable rate. While it may be true that in-house counsel have been compensated through an award of fees for representation of their employer in litigation matters, such an award would not be appropriate here as Kenneth Meagher represented both himself and his wife and not his employer. Consider, Jones v. Ippoliti, 52 Conn.App. 199, 727 A.2d 713 (1999).
Based on the particular circumstances of this case, the court exercises its discretion to find that no attorneys fee should be awarded. New England Custom Concrete, LLC v. Carbone, supra, 102 Conn.App. 667.
B
CT Page 4126
COSTS
Plaintiffs have submitted a bill of costs in accordance with the court's order of December 8, 2008. The defendants contest only certain portions of the plaintiffs' costs, specifically, some of the subpoena fees, copy fees, and expert witness fees."The general rule of law known as the American rule is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception . . . This rule is generally followed throughout the country . . . There are [a] few exceptions. For example, a specific contractual term may provide for recovery of attorneys fees and costs . . . or a statute may confer such rights." (Internal quotation marks omitted.) TES Franchising, LLC v. Feldman, 286 Conn. 132, 148-49, 943 A.2d 406 (2008). "It is a settled principle of our common law that parties are required to bear their own litigation expenses, except as otherwise provided by statute." (Internal quotation marks omitted.) Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, 272 Conn. 14, 48, 861 A.2d 473 (2004). Furthermore, "[b]ecause [c]osts are the creature of statute . . . unless the statute clearly provides for them courts cannot tax them." (Internal quotation marks omitted.) Smith v. Andrews, 289 Conn. 61, 81, 959 A.2d 597 (2008). Therefore, the issue to be addressed is the determination of the statutory construction of both General Statutes §§ 52-257 and 52-260. "An examination of General Statutes § 52-257 . . . reveals that most of the awards are automatic assessments, not involving the discretion of the court. The principal exceptions to this general rule are subsection (d) concerning minor specific matters and subsection (e) reserving to the court its time-honored discretion in taxing costs in actions in which equitable relief is granted." (Internal quotation marks omitted.) Fengler v. Northwest Connecticut Homes, Inc., 215 Conn. 286, 291, 575 A.2d 696 (1990).
General Statutes § 52-257(a) generally sets forth the costs available to the prevailing party in a civil action in which the demand is not less than $15,000. Section (b) further provides, in relevant part: "(b) Parties shall also receive . . . (2) for each deposition taken out of the state, forty dollars, and for each deposition within the state, thirty dollars . . . (5) for maps, plans, mechanical drawings and photographs, necessary or convenient in the trial of any action, a reasonable sum; (6) for copies of records used in evidence, bonds, recognizances and subpoenas, court and clerk's fees; (7) for the signing and service of process, the legal fees payable therefor, except that a fee shall not be allowed for the return of a subpoena to court . . . (12) for the recording, videotaping, transcribing and presentation of the deposition of a practitioner of the healing arts, as defined in section 20-1, dentist, registered nurse, advanced practice registered nurse or licensed practical nurse, as defined in section 20-87a, or real estate appraiser that is used in lieu of live testimony in the civil action, the reasonable expenses incurred."
General Statutes § 52-260(f) provides: "When any practitioner of the healing arts, as defined in section 20-1, dentist, registered nurse, advanced practice registered nurse or licensed practical nurse, as defined in section 20-87a, or real estate appraiser gives expert testimony in any action or proceeding, including by means of a deposition, the court shall determine a reasonable fee to be paid to such practitioner of the healing arts, dentist, registered nurse, advanced practice registered nurse, licensed practical nurse or real estate appraiser and taxed as part of the costs in lieu of all other witness fees payable to such practitioner of the healing arts, dentist, registered nurse, advanced practice registered nurse, licensed practical nurse or real estate appraiser."
As to the subpoena costs, the defendants have challenged the amounts claimed as to Mr. Mazzola ($50), Ms. McGoey ($48) and Mr. McGoey ($48) as none of these fact witnesses testified at trial. In Honan v. Dimyan, 63 Conn.App. 702, 778 A.2d 989 (2001), the Appellate Court addressed the issue and allowed the recovery of the cost of twenty subpoenas although only one of the twenty individuals subpoenaed actually testified. It noted that "the prevailing party may receive costs for subpoenas. The plaintiffs provided no legal support for their contention that the costs for the subpoenas of a witness not used in a party's case-in-chief are not recoverable and we can find none . . . [T]he costs fall within § 52-257(b)(6) because that section allows a prevailing party to recover costs for subpoenas, and no statute or case law limits the application of that subsection." Honan v. Dimyan, supra, 712. Therefore, the court finds that the cost of the subpoenas claimed by the plaintiffs is taxable under § 52-257(b)(6).
As to the cost of copies, the defendants do not challenge the cost of certified copies obtained and produced as exhibits at trial in the amount of $185. They do however, object to extra copies provided by plaintiffs to the court and the defendants in the amount of $432.33. The court finds $200 to be reasonable for additional copies which were necessary or convenient in the trial of the action pursuant to § 52-257(b)(5).
As to the deposition fees, including preparation time for the plaintiffs' expert Joseph Fossi, the defendants object to the $800 claimed in that he was not in the defined category of expert witnesses for which costs may be statutorily assessed. Our Supreme Court has clarified the split of authority that had existed in the lower courts relative to the awarding of fees and expenses charged by an expert in preparation for trial testimony by ruling that there is no statutory authorization to allow them as costs. Smith v. Andrews, 289 Conn. 61, 81, 959 A.2d 597 (2008). More specifically, the court finds that the plaintiffs' disclosure of Mr. Fossi as an expert on home construction and/or improvements does not come within the penumbra of experts who have testified at trial for which costs are allowed under § 52-260(f). Therefore, those costs are not recoverable by the plaintiffs.
As to the fee of $3,300 claimed for the trial testimony of Andrew Rego, consisting of 22 hours of preparation time and court time at $150 per hour, the plaintiffs acknowledged at the hearing that Mr. Rego did not appear as an expert and appeared solely as a fact witness. There was no disclosure of expert filed by the plaintiffs relative to Mr. Rego's testimony. As such, he does not fall within the parameters of either § 52-257(b) or § 52-260(f) for the awarding of costs. Therefore, those costs are not recoverable by the plaintiff.
A fact witness is however entitled to the regular fee payable to any witness who may testify at trial as set forth in General Statutes §§ 52-257(b)(1) and 52-260(a).
So ordered.