Opinion
CV156031188
04-08-2019
Shara ROCCO et al. v. Abdulhamid SHAIKH
UNPUBLISHED OPINION
OPINION
Tanzer, J.T.R.
On September 28, 2016, this court, after a hearing in damages, entered judgment for the plaintiffs, Shara Rocco and Patrick Rocco, and against the defendants Abdulhamid Shaikh and Rukaiyabanu Shaikh. On September 18, 2018, the Appellate Court affirmed the judgment. Rocco v. Shaikh, 184 Conn.App. 786, 196 A.3d 366 (2018). Before the court is the plaintiffs’ postjudgment motion, pursuant to Practice Book § 11-21, seeking an award of appellate attorneys fees plus costs. Section 11-21 provides in pertinent part that if appellate attorneys fees are sought, motions for such fees shall be filed with the trial court within thirty days following the date on which the Appellate Court or Supreme Court rendered its decision disposing of the underlying appeal.
Briefly, inasmuch as the Appellate Court decision sets forth in detail the factual background and litigation history of this simple real estate transaction gone awry, the record shows that the plaintiffs initiated this action in a six-count complaint dated October 29, 2015, to quiet title, to discharge an invalid lien, and to claim slander of title, tortious interference, CUTPA violation and breach of contract. The plaintiffs requested damages and other relief including punitive damages, attorneys fees, costs and interest. In the Sixth Count the plaintiffs asked the trial court to declare that the defendants breached their contract to purchase real estate and that as a consequence of such breach the defendants should forfeit their deposit of $ 10, 000 to the plaintiffs as liquidated damages. The trial court ruled that the deposit be delivered and retained by the plaintiffs. Additionally, the trial court awarded monetary damages in the amount of $ 30, 996.22, plus attorneys fees in the amount of $ 60, 862. The trial court did not state the basis or bases for the award of attorneys fees.
The CUTPA count and the claim for CUTPA punitive damages was withdrawn by the plaintiffs.
See Docket Nos (167) and (169) clarifying the judgment.
In support of the motion for appellate attorneys fees, the plaintiffs rely on Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, 308 Conn. 312, 63 A.3d 896 (2013), for the proposition that if a prevailing party has a legal entitlement to fees at trial, that entitlement will also apply to fees spent on appeal unless a contract or applicable law says otherwise. In that case, the Supreme Court considered the issue of whether an attorneys fees provision encompasses appellate attorneys fees and held as follows: "We will construe an attorneys fees provision that is silent with respect to appellate attorneys fees as encompassing such fees in the absence of contractual language to the contrary ... As with attorneys fees incurred at the trial level, however, such fees can be awarded only when there is a contractual or statutory basis for doing so." Id. at 337. In their objection to the plaintiffs’ motion for appellate attorneys fees, the defendants contend that the plaintiffs have misconstrued Total Recycling. The defendants argue the attorneys fees ordered by the trial court were based on common-law punitive damages for the tort of slander to title and that common-law punitive damages are not recoverable as appellate attorneys fees because there is no contractual or statutory basis for doing so. As noted by the Appellate Court, however, "[I]t appeared that the plaintiffs sought attorneys fees ... under the contract and common law." Rocco v. Shaikh, supra, 184 Conn.App. at 376. In their Memorandum of Law for attorneys fees in the trial court (Docket #156), the plaintiffs state, "The allegations in the complaint are enough to establish the defendants’ liability for willful tortious interference and slander of title, in addition to a breach of their obligation to forfeit their deposit under the purchase and sale agreement." The purchase and sale agreement dated April 15, 2015, provides,
Paragraph 12. Default; Liquidated Damages; Remedies. If Buyer defaults under this Contract and Seller is not in default, Buyer’s deposits shall be paid over to and retained by Seller as liquidated damages and both parties shall be relieved of further liability under this Contract, except to the extent of Buyer’s obligations under paragraph 17.
If Seller defaults under this Contract and Buyer is not in default, Buyer shall be entitled to any and all remedies provided by law and equity including, but not limited to, specific performance and recovery of amounts spent for mortgage application, appraisal, title search, and test or inspections. If a legal action is brought to enforce any provision of the Contract, the prevailing party including a broker who is made party to such action and who has not significantly contributed to the default, shall be entitled to court costs and attorneys fees." (Emphasis supplied.)
ENTITLEMENT TO APPELLATE ATTORNEYS FEES
The defendants argue that the plaintiffs are not entitled to appellate attorneys fees authorized by contract because:
1) Enforcement of the Contract was not an Issue at the Hearing in Damages
Enforcement of the contract was an issue at the hearing in damages. In Count Six the plaintiffs sought and successfully received a turnover order of the deposit to them pursuant to the liquidated damages clause in Section 12 of the contract;
2) Plaintiffs Failed to Seek Attorneys Fees in their Prayer for Relief in Count Six, the Breach of Contract Claim
The plaintiffs did include in their prayer for relief "Attorneys fees and costs pursuant to CUTPA and common law." "[T]he common law rule in Connecticut, also 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." (Internal quotation marks omitted.) Berzins v. Berzins, 306 Conn. 651, 657, 51 A.3d 941 (2012). "There are few exceptions. For example, a specific contractual term may provide for the 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).
3) Plaintiffs’ Claim of Breach of Contract Did Not Entitle them to Attorneys Fees Under the Express Language of the Contract
In reviewing a claim that attorneys fees are authorized by contract, we apply the well established principle that "[a] contract must be construed to effectuate the intent of the parties, which is determined from [its] language ... interpreted in the light of the situation of the parties and the circumstances connected with the transaction." (Internal quotation marks omitted.) FCM Group, Inc. v. Miller, 300 Conn. 774, 811, 17 A.3d 40 (2011). Accord, Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, supra, 308 Conn. 326-27. The language of the above quoted contract expresses the intent of the parties on the occasion of a default to provide for court costs and attorneys fees for a prevailing party forced to bring a legal action to enforce any provision of the contract. Here, the plaintiffs as Sellers had to resort to litigation in order to enforce the provision entitling them to retain the defendant Buyers’ deposit as liquidated damages. The plaintiffs were not limited, as the defendants contend, to just liquidated damages. Had the parties intended such a limitation; had they intended to limit attorneys fees to litigation at the trial level only, they could have expressed such limitations. By contract, the plaintiffs were entitled to attorneys fees as the prevailing party in the trial court and are entitled to attorneys fees on appeal. There is no contractual language to the contrary. "We ... will construe an attorneys fees provision that is silent with respect to appellate attorneys fees as encompassing such fees in the absence of contractual language to the contrary." Id., 337.
The Defendants’ argument that the contract should be construed against the plaintiffs as drafter is to no avail inasmuch as the contract is copyrighted to the Greater Hartford Association of REALTORS, Inc.
AMOUNT OF ATTORNEYS FEES
"The amount of attorneys fees to be awarded rests in the sound discretion of the trial court ... Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law ... Judicial discretion is always a legal discretion, exercised according to the recognized principles of equity ... The trial court’s discretion imports something more than leeway in decision making and should be exercised in conformity with the spirit of the law and should not impede or defeat the ends of substantial justice." (Citations omitted; internal quotation marks omitted.) Rodriguez v. Ancona, 88 Conn.App. 193, 201-02, 868 A.2d 807 (2005). Furthermore, our Supreme Court has "long held that there is an undisputed requirement that the reasonableness of attorneys fees and costs must be proven by an appropriate evidentiary showing ... We also have noted that courts have a general knowledge of what would be reasonable compensation for services which are fairly stated and described ... and that courts may rely on their general knowledge of what has occurred at the proceedings before them to supply evidence in support of an award of attorneys fees." (Citations omitted; emphasis in original; internal quotation marks omitted.) Smith v. Snyder, 267 Conn. 456, 471, 839 A.2d 589 (2004).
"[T]he initial estimate of a reasonable attorneys fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Carrillo v. Goldberg, 141 Conn.App. 299, 317, 61 A.3d 1164 (2013). "The courts may then adjust this lodestar calculation by other factors"; id.; applying a test often referred to as the Johnson test. See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974); Steiger v. J.S. Builders, Inc., 39 Conn.App. 32, 35-39, 663 A.2d 432 (1995).
"The Johnson court set forth twelve factors for determining the reasonableness of an attorneys fee award, and they are: the time and labor required; the novelty and difficulty of the questions; the skill requisite to perform the legal services properly; the preclusion of other employment by the attorney due to acceptance of the case; the customary fee; whether the fee is fixed or contingent; time limitations imposed by the client or the circumstances; the amount involved and the results obtained; the experience, reputation, and ability of the attorneys; the ‘undesirability’ of the case; the nature and length of the professional relationship with the client; and awards in similar cases." Laudano v. New Hawn, 58 Conn.App. 819, 823 n.9, 755 A.2d 907 (2000).
This case involves a residential real estate contract dispute between two similarly situated parties, not an action brought pursuant to a statute specifically enacted to assist private litigants who might otherwise be unable to enforce their rights. The present case does not require the court to apply an analysis under the Johnson test for attorneys fees. See Electrical Wholesalers, Inc. v. V.P. Electric, Inc., 132 Conn.App. 843, 849-50, 33 A.3d 828, cert. denied, 303 Conn. 939, 37 A.3d 155 (2012). See also Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, supra, 308 Conn. 312. Courts have found that a contract clause providing for reimbursement of incurred fees "permit[s] recovery upon the presentation of an attorney’s bill, so long as that bill is not unreasonable upon its face and has not been shown to be unreasonable by countervailing evidence or by the exercise of the trier’s own expert judgment." (Internal quotation marks omitted.) N.E. Leasing, LLC v. Paoletta, 89 Conn.App. 766, 778, 877 A.2d 840, cert. denied, 275 Conn. 921, 883 A.2d 1245 (2005).
Attorney Flynn provided the court with an Affidavit regarding his hourly rate and an account of billings to his clients in connection with the appeal. This court has carefully reviewed those records as well as the extensive Affidavit Attorney Flynn provided to support the plaintiffs’ request for trial attorneys fees. (Docket No. 155, Exhibit B.) Attorney Flynn, whose usual rate is $ 400 per hour, charged the plaintiffs $ 350 per hour. In light of Attorney Flynn’s experience and skill as an attorney, the court finds this hourly rate reasonable. Attorneys fees were charged from May 17, 2017 through March 19, 2018 for 70.7 hours in connection with the appeal plus an additional 4 hours in connection with the instant motion for a total of 74.7 hours. Considering the work performed and the time expended, the court finds $ 26, 145 to be a reasonable fee for the services performed by Attorney Flynn.
CONCLUSION
For the foregoing reasons, the motion is granted. The plaintiffs are awarded attorneys fees in the amount of $ 26, 145 and costs in the amount of $ 300.
The defendants did not object to the bill of costs, only to the payment of any appellate attorneys fees.