Opinion
No. HHB CV-08-5008388 S
January 13, 2010
MEMORANDUM OF DECISION
I. History and Nature of Proceedings
On May 22, 2008 the plaintiff, a licensed real estate broker and sole member of New Britain Realty, LLC, commenced this action in her individual capacity against Joan Petano, who died teststate on October 24, 2008. In her initial two-count complaint the plaintiff sought to recover from Petano, hereinafter also referred to as "the decedent," a commission, which she alleges she earned as a result of negotiating the sale of real property owned by the decedent, which is located at 100 Deming Street, Newington, Connecticut. The first count of the complaint is based upon an alleged breach of an exclusive listing agreement while the second count is based upon the equitable principle of unjust enrichment.
On March 17, 2009, the court (Pittman, J.), granted the plaintiff's motion to substitute Richard Petano, the decedent's nephew and duly appointed executor of her estate which on May 15, 2009, resulted in the plaintiff's filing of an amended complaint reflecting that substitution.
On July 20, 2009, the plaintiff filed a request to amend her complaint along with the proposed amendment, to which the executor filed his objection on July 27, 2009. Shortly before the commencement of the trial, the court granted the plaintiff's request, as the amendment simply clarified the basis of the plaintiff's unjust enrichment claim, which, as noted, was a part of the plaintiff's initial complaint. Thus, the plaintiff's two-count amended complaint dated and filed July 20, 2009 (#127) was the operative complaint for the purposes of the trial.
During the two-day trial, the court heard from five witnesses, to wit: the plaintiff; the decedent's executor; Attorney Nicholas DeNigris, who represented the decedent at the real estate closing; Linda Groeper, who is the secretary of Attorney Timothy Sheehan, who represents the defendant/estate in this action; and attorney Deborah Dorio, who, along with Attorney Lloyd Lowinger, represents the plaintiff in this action. The court received into evidence twenty documentary exhibits, fourteen offered by the plaintiff and six offered by the defendant. At the conclusion of the trial a briefing schedule was agreed to. The court, after reading all of the pleadings; reviewing and studying each of the exhibits; considering the testimony of the witnesses and assessing the credibility of each; and considering the oral and written arguments of counsel, makes the following findings.
II. Relevant Facts
Several days prior to December 10, 2007, the decedent's husband, Bruce O'Callahan, contacted the plaintiff, who was then a social acquaintance of both the decedent and her husband. He mentioned that the decedent was interested in selling 100 Deming St, which was a residential dwelling, consisting of four apartments. At that time, the plaintiff recommended some investors without the anticipation of any commission. However, several days thereafter, O'Callahan again contacted the plaintiff to formally retain her services in selling the real property for which, the plaintiff testified, she then expected to receive a commission due to the anticipated time and expense that she would incur in marketing the real estate. She prepared an "Exclusive Right to Sell Listing Contract," hereinafter referred to as the exclusive listing agreement, that she presented to O'Callahan. Plaintiff's Exhibit #1. On that same day O'Callahan returned the document to the plaintiff, which contained the purported signature of Joan Petano, O'Callahan's spouse and the sole owner of the subject realty. O'Callahan explained that his wife was unable to come to the office as she was recovering from recent surgery, a fact confirmed by the testimony of the executor of her estate. The exclusive listing agreement, inter alia, provided that upon a successful sale, the plaintiff would earn a commission of 5% of the agreed price, however, if the property was sold "in-house," meaning to another realtor, the commission to which the plaintiff would be entitled would be reduced to 3% of said price. Although the listed price in the document was $239,900.00, it is noteworthy that said amount may have been inserted after O'Callahan presented the exclusive listing agreement to his wife. See defendant's Exhibit F. It is also noteworthy, however, that the listing price inserted by the plaintiff in the multiple listing service (MLS) document was $239,900.00. See plaintiff's Exhibit #11b.
On December 21, 2007, as a result of the MLS posting, the plaintiff received a faxed real estate purchase contract from Chozik Realty, signed by Ryan W. Perkoski, who offered to purchase the property for an effective price of $240,000.00. Plaintiff's Exhibit #2. The proposed contract specifically listed as brokers, New Britain Realty and Chozick Realty, Inc. The offer was accepted on December 21, 2007, under the purported signature of the decedent. The plaintiff testified that she presented the other to O'Callahan, who promptly returned the document to the plaintiff with the decedent's signed acceptance. On December 24, 2007, the decedent signed a so-called "backup agreement" with John Gazerwitz and Dennis Damato, wherein the decedent agreed to sell the subject property to the aforementioned parties, who are licensed real estate agents, for a total price of $245,000.00. Plaintiff's Exhibit #4. In that document, the listing broker was "New Britain R[ea]lty" and "Maria Pena" and the cooperating broker was New Britain Realty, clearly an "in house" transaction, which would trigger, per the exclusive listing agreement, the lesser commission. Thus, the deal from the decedent's perspective was much more attractive than that evidenced by the first offer purportedly accepted by her. The plaintiff testified that since the proposal was sent to her, she felt obligated to present it to the decedent which she, in fact, did, however, after receiving the fully executed document, the plaintiff felt compelled to and did contact the decedent orally and in writing, explaining to her that the second offer was to be considered a backup offer only. See plaintiff's Exhibit #5. The plaintiff explained to the decedent that in order to ethically and legally sell the property to Gazerwitz and Damato, the decedent would have to obtain a release from Perkoski. Despite this appropriate advice, however, unbeknown at the time to the plaintiff, the decedent, on January 12, 2008 entered into another agreement with Gazerwitz and Damato. Plaintiff's Exhibit #7. That agreement provided that she would sell the subject property to those individuals at the same price and under the same terms and conditions that were identical to those provided in the earlier agreement, with one notable exception: in paragraph #22 entitled "Brokers(s)," "N/A" is inserted, meaning that the parties to that agreement averred, despite the brokerage language contained in their earlier agreement, that there was no commission due to anyone as a result of the sale of the subject property to the realtor buyers. The effect of that agreement was to negate any commission to which the plaintiff might be entitled pursuant to her exclusive listing agreement.
The offer provided for a total purchase price of $249,000, however, it was subject to a credit for closing costs of $9,000.00.
The decedent's intent and persistence, despite the plaintiff's advice to the contrary, in ignoring the agreement which she purportedly made with Perkoski, becomes apparent when one examines plaintiff's Exhibit #3, dated January 25, 2008. That exhibit, dated thirteen days after the decedent entered into the second agreement with Gazerwitz and Damato, is a statement from Perkowski that terminates his agreement with the decedent relative to the purchase and sale of 100 Deming Street. In that statement, he recites that his inspections have not been satisfactorily completed due to "the seller's refusal to allow adequate access to my inspector and ejecting him from the property." Emphasis added. The statement further indicates that Perkoski was unable to complete the inspection of the well and septic systems due to the refusal of the seller to allow those inspections which were mandated by Perkoski's mortgagee. This document is totally consistent with the plaintiff's testimony that the decedent was insisting that the deal with Gazerwitz and Damato be pursued to conclusion, despite the plaintiff's cautionary and correct advice that a release was needed from Perkoski in order to proceed to close the deal with those prospective buyers. Naturally, once the plaintiff was dealt out of the picture, via the second agreement between the decedent and those prospective buyers, the ethical considerations raised by the plaintiff were no longer an impediment to closing the more attractive deal. That is exactly what the decedent proceeded to do.
On February 20, 2008, at the offices of Attorney DeNigris, the closing took place whereby the subject property was conveyed by the decedent to Gazerwitz and Damato pursuant to their second agreement at the agreed sale price of $245,000.00. See plaintiff's Exhibits #6 (Warranty Deed); #8 (Settlement Statement-RESPA); and #10 (Attorney's Closing Statement,). Attorney DeNigris testified that he was informed by each of the parties that there was no real estate broker or agent involved in the transaction. He was not informed that the parties had entered into an earlier contract under the same terms and conditions and for the same price that did envision the payment of a brokerage commission to the plaintiff. On February 23, 2008, three days after the closing took place, the plaintiff became aware of the situation and faxed a letter to Attorney DeNigris enclosing a copy of the listing agreement and informing the attorney of her desire to be paid her commission. Plaintiff's Exhibit 11A.
The plaintiff testified that she did have a conversation with the decedent subsequent to the closing and informed the decedent that she would accept $6,100.00 for the services that she performed in bringing about the successful closing. The decedent told the plaintiff that she would deliver a check for said amount to Attorney DeNigris, who would then turn it over to the plaintiff. Several days later, the plaintiff received a phone call, followed by a letter from Attorney Sheehan, who on behalf of the decedent requested that the plaintiff refrain from harassing the decedent in order to obtain the commission. Three months thereafter, the plaintiff commenced this action.
III. Factual Analysis
In pondering the above scenario, as depicted in the documentary and testimonial evidence, this court is well aware of several factors, some of which have influenced the court's decision, some of which have not.
A central issue at the trial was whether the signature purported to be that of the decedent as it appears on the exclusive listing agreement ( plaintiff's #1) was actually signed by the decedent. To prove it was not the signature of Joan Petano, several documents were offered by the defendant to serve as a basis for comparison. In addition to the aforementioned closing documents which were witnessed by Attorney DeNigris, we have the decedent's will ( plaintiff's #12), which was witnessed by Attorney Sheehan and attested to by others. We also have several leases which bear the decedent signature. See defendant's Exhibits B, C, D, and E. While this case was pending, the decedent executed an affidavit ( defendant's Exhibit A) wherein she avers that she never signed the exclusive listing agreement and that plaintiff's #1 (Exhibit A attached to the initial complaint) does not bear her signature. In this clearly self-serving affidavit, the decedent also states that she did not authorize any other person to sign her name or to act as her attorney-in-fact in connection with the sale of the subject property. Noteworthy, however, is the avoidance of the real issue, i.e., whether the decedent authorized the plaintiff to act as her exclusive agent in bringing about a successful sale of the subject property. The plaintiff testified under oath that she had several telephone conversations with the decedent during the process. This court finds that the plaintiff's testimony in this regard is credible. The court, as it is permitted to do, performed a comparative analysis of the eight exhibits containing the decedent's purported signature. All of those that bear her actual signature, some containing her middle initial, "C," some do not. Some signatures are quite clear, while others appear to be that caused by the shaking hand of a seriously ill individual. The purchase and sale agreement between the decedent and Gazerwitz and Damato, that is, their first agreement ( plaintiff's #4) appears to fit the latter category. This court however agrees with the defendant that the signature, "Joan Petano," as it appears on plaintiff's #1, is not that of the decedent. Moreover, during her testimony the plaintiff, having been shown the decedent's actual signature, admitted that the signature on the exclusive listing agreement was "different." This court agrees that the decedent did not sign plaintiff's Exhibit #1. Whether she authorized the purported signature to be inserted on that document or on the Perkoski agreement ( plaintiff's #2) is entirely another matter. This court believes that the decedent was well aware of all of the transactions referred to herein and was well aware of and authorized the plaintiff's involvement in the sale of the subject property with the anticipation of paying an agreed commission to the plaintiff upon the successful closing of the sale.
General Statutes Sec. 52-172 provides: "In actions by or against the representatives of deceased persons, and by or against the beneficiaries of any life or accident insurance policy insuring a person who is deceased at the time of the trial, the entries, memoranda and declarations of the deceased, relevant to the matter in issue, may be received as evidence. In actions by or against the representatives of deceased persons, in which any trustee or receiver is an adverse party, the testimony of the deceased, relevant to the matter in issue, given at his examination, upon the application of such trustee or receiver, shall be received in evidence."
In Connecticut, such comparisons are permitted to be made by a judge or jury without the assistance of expert testimony. Tyler v. Todd, 36 Conn. 218, 223 (1869); State v. Jones, 8 Conn.App. 177, 183 (1986).
Another factor considered by the court is the absence from the trial of Gazerwitz and Damato and, in particular, the failure of the plaintiff to call O'Callahan as a witness. The decedent's nephew-executor testified that, although the decedent and her husband separated in February 2008, they were residing together in December 2007, at the time the exclusive listing agreement and all three buy-sell agreements were executed. The nephew testified that on December 13, 2007, the decedent underwent surgery during which a lung was removed. The procedure was followed by chemotherapy and radiation, all of which confirms that the decedent was in serious ill health when the various agreements were negotiated and executed. An inference, therefore, can be readily made that O'Callahan acted as the go-between relative to the sale of the subject property. Why did the plaintiff choose not to call the decedent's spouse? His testimony would most likely have been favorable to the plaintiff, as the nephew-executor testified that divorce proceedings were pending at the time of the decedent's death and that O'Callahan was, at the time of trial, asserting claims against the decedent's estate. As the nephew put it, "Bruce is around and making claims against the estate." The court is certainly permitted to make an adverse inference given the relevance and materiality of O'Callahan's anticipated testimony and his apparent availability. Such an inference may be statutorily allowed, however, it is not statutorily mandated. The court may exercise its discretion in the matter and may opt not to apply the statute under all of the facts and circumstances. In this case, the plaintiff's credible testimony corroborated by the documentary evidence precludes such an inference.
It is noteworthy in this regard, that Article Second of the decedent's Last Will and Testament limits O'Callahan's inheritance to a life use of the statutory spousal share. The bulk of the estate, after specific requests of $40,000 to each of the six nieces and nephews (including the executor-nephew) is divided equally between the executor-nephew and one niece. Plaintiff's Exhibit #12.
General Statutes Sec. 52-216c provides: "No court in the trial of a civil action may instruct the jury that an inference unfavorable to any party's cause may be drawn from the failure of any party to call a witness at such trial. However, counsel for any party to the action shall be entitled to argue to the trier of fact during closing arguments, except where prohibited by section 52-174, that the jury should draw an adverse inference from another party's failure to call a witness who has been proven to be available to testify."
From that evidence it is clear to this court that although the decedent did not sign the exclusive listing agreement, she did authorize the execution of that document along with the buy-sell agreement with Perkoski and the first agreement between her and Gazerwitz and Damato. Each of those three documents clearly reflect the obligation assumed by the decedent to pay a commission to the plaintiff. The decedent did affix her signature to the second agreement with the latter individuals agreeing to sell the subject property under the same terms and conditions as contained in their first agreement, but without any commission to the plaintiff. Both parties then proceeded to closing without notice to the plaintiff and without disclosing to the closing attorney (DeNigris) the plaintiff's involvement. That closing took place after the decedent refused to allow Perkoski to inspect the property, which was a purposeful breach of the decedent's contract with Perkowski with the objective of consummating the sweeter deal with Gazerwitz and Damato. The court must decide however, despite the equities, whether the plaintiff may recover the commission under Connecticut law.
IV. Applicable Law A. The Statutory Requirements
The right of the plaintiff, as a licensed real estate broker, to bring an action against the decedent to collect her commission is governed by General Statutes Sec. 20-325a, more specifically, subparagraph (b) and (d), which provide that:
(b) No person, licensed under the provisions of this chapter, shall commence or bring any action with respect to any acts done or services rendered after October 1, 1995, as set forth in subsection (a), unless the acts or services were rendered pursuant to a contract or authorization from the person for whom the acts were done or services rendered. To satisfy the requirements of this subsection any contract or authorization shall: (1) Be in writing, (2) contain the names and addresses of the real estate broker performing the services and the name of the person or persons for whom the acts were done or services rendered, (3) show the date on which such contract was entered into or such authorization given, (4) contain the conditions of such contract or authorization, (5) be signed by the real estate broker or the real estate broker's authorized agent, (6) if such contract or authorization pertains to any real property, include the following statement: "THE REAL ESTATE BROKER MAY BE ENTITLED TO CERTAIN LIEN RIGHTS PURSUANT TO SECTION 20-325a OF THE CONNECTICUT GENERAL STATUTES", and (7) be signed by the person or persons for whom the acts were done or services rendered or by an agent authorized to act on behalf of such person or persons, pursuant to a written document executed in the manner provided for conveyances in section 47-5, except, if the acts to be done or services rendered involve a listing contract for the sale of land containing any building or structure occupied or intended to be occupied by no more than four families, the listing contract shall be signed by the owner of the real estate or by an agent authorized to act on behalf of such owner pursuant to a written document executed in the manner provided for conveyances in section 47-5.
(d) Nothing in . . . subdivisions (2) to (7), inclusive, of subsection (b) of this section . . . shall prevent any licensee from recovering any commission, compensation or other payment with respect to any acts done or services rendered, if it would be inequitable to deny such recovery and the licensee . . . has substantially complied with subdivisions (2) to (7), inclusive, of subsection (b) of this section . . . (Emphasis added)
In Location Realty, Inc. v. Colaccino, 287 Conn. 706 (2008), Justice Katz explained the evolution of the statute:
Section 20-325a originally was enacted in 1971, and that simpler revision of the statute included a section prohibiting those not duly licensed from recovering a commission and a section setting forth five requirements for a written agreement between a licensee and an individual or entity receiving real estate brokerage services . . . Thereafter, the legislature made various changes to the requirements in what is now subsection (b) See, e.g., Public Acts 1984, No. 84-137, § 1 (permitting parties to listing agreement or their duly authorized agents to sign agreement); Public Acts 1993, No. 93-355, § 1 (adding notification provision concerning real estate broker's liens to writing requirements in subsection [b] and seven other new subsections).
The most significant change for purposes of the present case occurred in 1994, when the legislature added what is now subsection (d), the exception permitting recovery for those persons who substantially had complied with the requirements of the statute provided that the equities balanced in their favor. Public Acts 1994, No. 94-240, § 3. The legislative history of that provision specifically indicates that the real estate industry brought concerns about unjust enrichment to the legislature's attention . . .
The legislative history [of now § 20-325a(d)] indicates that the proposal was brought forth in response to certain decisions of this court that strictly construed the requirements of § 20-325a(b), namely, the formal requirements of a listing agreement, and denied brokers the right to recover for failures of strict compliance therewith. See, e.g., M.R. Wachob Co. v MBM Partnership, [ supra, 232 Conn. 658-62]; Conn. Joint Standing Committee Hearings, supra, p. 91. That history indicates that the task force that drafted the legislation considered that the strict construction of subsection (b) of § 20-325a had resulted in some cases of "unjust enrichment." Conn. Joint Standing Committee Hearings, supra, p. 91. This history, in turn, also suggests that the question of recovery, despite a failure to comply strictly with subsection (a) of § 20-325a, must be determined on the basis of all of the facts and circumstances of the case. (Emphasis added.)
Id., at page 728-30.
Seven years earlier, in Levey Miller Maretz v. 595 Corporate Circle, 258 Conn. 121, 132 (2001), the court, in addressing the 1984 amendment, in language that is clearly applicable to the 1994 amendment, observed:
We also stated that "the legislative history of the 1984 amendment reveals that the legislature has attempted to avoid narrow judicial constructions of the language of the statute. Indeed, the legislature altered the language of the statute in direct response to this court's decision in Thornton Real Estate, Inc. v. Lobdell, supra, 184 Conn. 228, in which this court had held unenforceable a listing agreement that failed to satisfy the literal language of the statute. In so doing, the legislature clearly expressed its position that it did not intend the literal language of the statute necessarily to erect barriers to the recovery of otherwise valid real estate commissions. Finally, the legislature has stated repeatedly that the statutory requirements for listing agreements are designed to simplify and clarify the process of hiring real estate brokers." M.R. Wachob Co. v. MBM Partnership, supra, 232 Conn. 661-62. This recent interpretation, elucidating the purposes and history of § 20-325a(b), is significant for at least two reasons. First, it reminds us that, despite our judicial insistence on a strict interpretation of the requirements of the statute, "the legislature has attempted to avoid narrow judicial constructions of the language of the statute." Id., 661. Second, it emphasizes that one purpose of the statute is to simplify and clarify the process of entering into a listing agreement. (Emphasis added.)
The cited provisions of the statute as interpreted by our Supreme Court make it clear that in real estate commission cases, the lack of strict statutory compliance by the broker may nevertheless, permit recovery of the commission by meeting two preconditions: (1) the broker has substantially complied with Sec. 20-325a(b) relative to his or her transaction with the owner of the real property and (2) the facts and circumstances of the case would make it inequitable to deny the commission to the broker. Location Realty v. Colaccino, supra, 287 Conn. 719.
This court has earlier determined that the equities favor of the plaintiff. The plaintiff testified that she spoke to the decedent on the telephone prior to drafting the written listing agreement and on several occasions thereafter once the two offers to purchase were provided to the plaintiff. Both the agreements with Perkoski and the first agreement with Gazerwitz and Damato recognize the plaintiff as the broker to whom a commission would be due once the closing took place. The most likely scenario is that O'Callahan, the decedent's spouse, presented the exclusive listing agreement to the decedent, who due to her weakened condition, authorized him to sign her name to the document. When the exclusive listing agreement was returned by O'Callahan to the plaintiff within a few hours, the plaintiff had no reason to suspect that the signature was not that of the decedent. As this court has earlier herein observed, by entering into a separate agreement with Gazerwitz and Damato, which eliminated the plaintiff from the transaction, and by not disclosing to her closing attorney the existence of the first agreement with those gentlemen, the decedent was able to consummate the sweeter deal, made all the more sweeter by the fact that she would not be paying a commission to the plaintiff.
It is noteworthy that the only requirement in subparagraph (b) of the statute that precludes the application of equitable test is that the existing agreement must be in writing. In this case, the agreement presented to the decedent, via her spouse, was "in writing." The requirement that the document be signed by the owner of the subject real property or the owner's authorized agent does not preclude this court from applying equitable considerations to the facts and circumstances of this case. In doing so, the equities favor the plaintiff, who had complied with the remaining requirements, i.e., (2) through (6) of subparagraph (b) of the statute. That compliance, this court deems to be substantial within the meaning of subparagraph (d).
The defendant cites Engelmnan v Connecticut General Life Ins Co., 240 Conn. 287 (1997), in support of his argument that the lack of the decedent's signature on the exclusive listing agreement is not within the narrow exception enacted by the General Assembly in 1994. That case, however, had nothing to do with section 20-325a, as it dealt with the manner in which one may legally change a beneficiary in a life insurance policy. As such, it is factually and legally distinguishable from this case.
B. Unjust Enrichment
As noted, the second count in the plaintiff's amended complaint is a cause of action based upon the equitable principle of unjust enrichment. In Meaney v. Connecticut Hospital Ass'n, Inc., 250 Conn. 500, 511 (1999), our Supreme Court explained the doctrine as follows:
Although, linguistically, such a claim is sometimes denominated an implied-in-law claim, or a quasi contract claim, it is more descriptive to call it what it is, a claim in restitution whose basis is the alleged unjust enrichment of one person at the expense of another. However denominated, a claim for unjust enrichment has broad dimensions. Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract. A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. (Internal quotation marks and citations omitted.)
In light of this court's decision in favor of the plaintiff relative to the first count, which is based upon the breach of a contract, i.e., the exclusive listing agreement, the remedy of unjust enrichment would not be appropriate. Moreover, our Supreme Court's holding in Location Realty, supra, is clearly dispositive of the second count, as the Court ruled that the enactment of subparagraph (d) of section 20-320a in 1994, in effect, trumped the common-law cause of action based upon unjust enrichment. Justice Katz instructed:
Thus, subsection (d) was enacted, at least in part, to deal with the precise equitable concerns at issue in claims of unjust enrichment. Put differently, by addressing the unjust enrichment problems with a statutory remedy, conditioned on substantial compliance, we conclude that the legislature declined to leave intact a common-law remedy to parties in these circumstances. We therefore conclude that substantial compliance is the sole avenue to recovery that the legislature chose to provide in circumstances wherein the strict construction of § 20-325a would lead to unfair results or unjust enrichment.
Location Realty v. Colaccino, supra, 287 Conn. 730.
Based upon that precedent, the second count of the plaintiff's complaint is dismissed.
IV. Damages
In her amended complaint, the plaintiff seeks a commission of $12,250.00 in addition to attorneys fees pursuant to the exclusive listing contract. The claim for that amount is based upon 5% of the $245,000.00 received by the decedent for the sale of the subject property to Gazerwitz and Damato. However, there is no question that the transaction was the "in-house" transaction referred to in paragraph #4 of the exclusive listing agreement ( plaintiff's #1), which would yield a commission of 3% or $7,350.00. This smaller sum is the commission sought in the plaintiff's brief. This court, however, agrees with the defendant that if any commission is due to the plaintiff, it is the amount that she requested from the decedent, per the plaintiff's own testimony. The plaintiff testified that after discovering that the closing did take place, she requested from Joan Petano the sum of $6,100.00 as her commission. This court does not recall any testimony from the plaintiff that said amount was arrived at via negotiation or compromise. The plaintiff requested $6,100.00 and, according to the plaintiff, the decedent responded by promising to deliver a check for that amount to Attorney DeNigris. In this court's view the plaintiff is entitled to be paid that which she specifically requested; the plaintiff is entitled to a commission of $6,100.00.
V. Attorney Fees
Paragraph #13 of the exclusive listing agreement provides: "I/we agree to pay any costs and attorney's fees, which you may incur to collect any monies due to you under this contract." Notably, the word "reasonable" does not precede "attorneys fees." It is clear, however that the plaintiff is entitled to a reasonable attorneys fee as a result of the successful prosecution of this action. Rule 1.5 of the Connecticut Rules of Professional Conduct prohibits any attorney from charging or collecting an unreasonable fee from a client.
Rule 1.5. Fees
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) The likelihood, if made known to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) The fee customarily charged in the locality for similar legal services;
(4) The amount involved and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) Whether the fee is fixed or contingent.
In this case, the plaintiff sought the services of Attorney Deborah Dorio who handled all of the somewhat protracted proceedings of this simple contract collection case except for the trial. Attorney Dorio engaged the services of Attorney Lloyd Lowinger, who tried the matter. Attorney Dorio is seeking a fee of $4,260.00 ( plaintiff's Exhibit #13), while Attorney Lowinger is seeking a fee of $3,975 ( plaintiff's Exhibit #14), supplemented by preparation of brief), a total requested fee of $8,235.00! This court finds that such an award would be, under all of the circumstance of this case, patently unreasonable. See Appliances, Inc. v. Yost, 186 Conn. 673, 680 (1982), wherein our Supreme Court credited trial judges with the general knowledge of what is reasonable for services rendered by an attorney to his or her client. Based upon that general knowledge, this court's specific knowledge of the nature and history of this dispute and those factors provided in Rule 1.5, the court will award the plaintiff, the total sum of $400,000 as attorneys fees, trusting that counsel will agree to an equitable division between them
VI. Conclusion
Based upon the foregoing, as to the first count of the plaintiff's amended complaint, the court will enter a judgment in favor of the plaintiff as against the defendant in the amount of $6,100.00, in addition to attorneys fees of $4,000.00 for a total judgment of $10,100.00. For the reasons stated herein, the second count of said complaint is hereby dismissed.
It is so ordered.