Opinion
HHDCV166064935S
10-02-2017
Luis Rodriguez et al. v. Brass Mill Center, LLC et al
UNPUBLISHED OPINION
ORDER RE MOTION FOR ATTORNEYS FEES #129
CESAR A. NOBLE, J.
Before the court, in this action in the nature of an interpleader, is the motion of the defendants, Karl D. Shehu, Esq., and his law firm, Shehu, LLC (Shehu defendants), for counsel fees (motion). For the reasons stated below, the court denies the motion.
This matter is the subject of a trial decision by the court, Rodriguez v. Brass Mill Ctr., LLC et al., Superior Court, judicial district of Hartford, 2016 WL 7742918 (Dec. 1, 2016, Noble, J.) (Rodriguez I ). Familiarity with the court's trial decision and the facts found therein is presumed. In brief, Luis Rodriguez and Phonecrafters, LLC (plaintiffs), brought Rodriguez I --an action in the nature of an interpleader--pursuant to General Statutes § 52-484 against the Shehu defendants and their co-defendant, Brass Mill Center, LLC (Brass Mill). The object of Rodriguez I, as with all interpleaders, was to resolve all matters in controversy related to a particular fund. In the present case the fund was comprised of $30,000 (stake) derived from the settlement of separate claims brought by the plaintiffs against Brass Mill. The latter withheld disbursement of the settlement funds as a result of competing claims against them by the Shehu defendants and the plaintiffs. The Shehu defendants had previously represented the plaintiffs in relation to their claims against Brass Mill, as well as the defense of claims brought by Brass Mill against the plaintiffs and claimed an attorneys fee charging lien against the stake. The matter was tried to this court, which found that the Shehu defendants " abandoned their representation of the plaintiffs and made an unreasonable demand on their clients [plaintiffs] for a sum unsupported by any basis in the Fee Agreement [between the Shehu defendants and the plaintiffs]." Id. at *5. The decision required consideration of the apportionment of the fund. The court found that there was no basis for the Shehu defendant's claim of entitlement for $92,474 in fees or costs and that such was not predicated upon any reasonable interpretation of the fee agreement. The court held that the Shehu defendants were not entitled to any of the stake and ordered the stake released in its entirety by the stake holder, Brass Mill, to the plaintiffs.
The following additional facts are necessary for the adjudication of the present motion. The trial decision in Rodriguez I was filed by the court on December 1, 2016. No appeal was taken therefrom. On August 15, 2017, more than eight months after the release of Rodriguez I, the Shehu defendants filed a motion for rehearing and/or clarification. The Shehu defendants' motion for rehearing and/or clarification raised for the first time a claim for attorneys fees pursuant to General Statutes § 42-150bb. Notably, the Shehu defendants' Answer of January 5, 2016, the Statement of Claim of March 14, 2016, the Amended Answer of August 3, 2016, and their post-trial memorandum of August 3, 2016 are devoid of any claim for § 42-150bb attorneys fees and contain no analysis of how that statute might apply in the context of the present interpleader. The court denied the motion as untimely and without merit.
Section 42-150bb provides: " Whenever any contract or lease entered into on or after October 1, 1979, to which a consumer is a party, provides for the attorneys fee of the commercial party to be paid by the consumer, an attorneys fee shall be awarded as a matter of law to the consumer who successfully prosecutes or defends an action or a counterclaim based upon the contract or lease. Except as hereinafter provided, the size of the attorneys fee awarded to the consumer shall be based as far as practicable upon the terms governing the size of the fee for the commercial party. No attorneys fee shall be awarded to a commercial party who is represented by its salaried employee. In any action in which the consumer is entitled to an attorneys fee under this section and in which the commercial party is represented by its salaried employee, the attorneys fee awarded to the consumer shall be in a reasonable amount regardless of the size of the fee provided in the contract or lease for either party. For the purposes of this section, 'commercial party' means the seller, creditor, lessor or assignee of any of them, and 'consumer' means the buyer, debtor, lessee or personal representative of any of them. The provisions of this section shall apply only to contracts or leases in which the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes."
The Amended Answer does claim attorneys fees but does not reference § 42-150bb.
On August 23, 2017, eight months and twenty-nine days after the court's decision releasing the stake to the plaintiffs, the Shehu defendants filed the present motion. The motion does not address or explain the delay in its filing. Brass Mill objected to the motion. The objection reminds the court that the plaintiffs' claims against Brass Mill, presumably including those for attorneys fees pursuant to § 42-150bb, were released at the time of settlement. Brass Mill's objection also raised the delay in the assertion of the claim for attorneys fees. The court agrees with Brass Mill as to the untimeliness of the motion. Moreover, the Shehu defendants' failure to have specifically pleaded a claim under § 42-150bb also serves as an independent basis to bar the claim.
The present motion of Shehu defendants is indeed woefully late. Our rules of practice provide that " [m]otions for attorneys fees shall be filed with the trial court within thirty days following the date on which the final judgment of the trial court was rendered." Practice Book § 11-21. The present motion was filed 265 days after the final judgment. In response to Brass Mill's objection of untimeliness, the Shehu defendants refer the court to Meadowbrook Ctr., Inc. v. Buchman, 169 Conn.App. 527, 151 A.3d 404 (2016), for the proposition that § 42-150bb establishes a substantive and mandatory right to attorneys fees. Shehu makes the assertion that, as a consequence of this substantive and mandatory right and the " decisional law" of this state, the court " has no discretion to deny the Shehu Defendants motion for attorneys fees pursuant to § 42-150bb." Defendants-in-Interpleader Karl. D. Shehu and Shehu, LLC's Reply Memorandum in Support of Motion for Attorney Fees, p. 10, September 10, 2017, Entry #130. The court is not persuaded.
It is true that § 42-150bb " is a legislative vehicle for consumer protection that affords consumers, as a matter of law, awards of reasonable attorneys fees for their successful defense or prosecution of actions based on consumer contracts [which provide for attorneys fees to a commercial party]." Meadowbrook Ctr., Inc. v. Buchman, supra, 169 Conn.App. 532. It is further true, however, that the " mandatory, substantive" entitlement to attorneys fees by a consumer successful in a claim against a commercial party is in tension with the policy informing the § 11-21 thirty-day directory limitation of avoiding an extended period of uncertainty caused by potential liability after judgment. Id. When the superior court is presented with a claim for attorneys fees pursuant to § 42-150bb that is untimely because it was filed outside of the thirty-day period established by Practice Book § 11-21, the tension is resolved by the exercise of the court's " discretion in determining whether strict adherence to the rule would 'work surprise or injustice.'" Meadowbrook Center, Inc. v. Buchman, supra, 169 Conn.App. 540, citing Practice Book § 1-8. Meadowbrook Center held in the context of the facts presented that a hearing was required.
Practice Book § 1-8 provides: " The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice."
In the present case the maladies of surprise and injustice may potentially be visited, not upon the " consumer" for whom § 42-150bb was enacted to benefit, but upon Brass Mill. " [T]he primary purpose of an interpleader action is to shield the stakeholder from conflicting claims to funds controlled by that stakeholder." Vincent Metro, LLC v. Yah Realty, LLC, 297 Conn. 489, 496, 1 A.3d 1026 (2010). Shehu's motion for counsel fees ignores the fact that the judgment of the court in Rodriguez I ordered the fund released in its entirety to the plaintiffs by Brass Mill. An interpleader claim is limited to a " limited specific sum of money." Stamford Wrecking Co. v. A.A.I.S., Superior Court, judicial district of New Haven, Docket No. 980420321, (1999 WL 701809, at *2) (August 23, 1999, Jones, J.) No appeal was taken by Shehu within the time limits mandated by Practice Book § 63-1. The court finds that the delay of 265 days was, in the circumstances of the present case, not the result of a minor failure to adhere to the timing requirements of Practice Book § 11-21, as contemplated by the Appellate Court in Meadowbrook Center, Inc. v. Buchman, supra, 169 Conn.App. 538. Rather, such delay demonstrated an egregious lack of fidelity by the Shehu defendants to basic rules of practice. The court therefore finds that the enforcement of the thirty-day mandate of Practice Book § 11-21 works neither an injustice nor surprise upon the Shehu defendants. Moreover, the court in Rodriguez I ordered Brass Mill relieved from any liability in relation to the stake. The failure of the Shehu defendants to file a timely appeal from its decision deprives them of any practical relief, i.e., an entity that could theoretically be liable for the attorneys fees they now seek. Thus, the present motion is barred by the failure of the Shehu defendants to have filed it in a timely fashion.
" Unless a different time period is provided by statute, an appeal must be filed within twenty days of the date notice of the judgment or decision is given." Practice Book § 63-1(a).
While the stakeholder is normally released and/or discharged from the suit at the time an interlocutory order of interpleader is ordered; Vincent Metro, LLC v. Yah Realty, LLC, 297 Conn. 489, 1 A.3d 1026; the parties agreed, and the court ordered, that Brass Mill, the stakeholder, would retain the stake through the pendency of the action, rendering a release or dismissal at that time inappropriate.
The court is mindful that the Appellate Court found a hearing necessary to determine if either surprise or injustice would be imposed on the movant if strict adherence to Practice Book § 11-21 were imposed. Where the failure to comply with the timing of § 11-21 is not minor or inconsequential, however, as in the present case, a hearing is not required.
Finally, the failure of the Shehu defendants to have specified in a timely manner the statute on which their claim for attorneys fees was grounded (i.e., § 42-150bb) also bars the claim. Practice Book § 10-3(a) provides that " [w]hen any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number." Although this provision is directory rather than mandatory; Spears v. Garcia, 66 Conn.App. 669, 676, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003); the opposing party must be sufficiently apprised of the nature of the statutory claim for it to proceed. In the present case, the only claim for attorneys fees by the Shehu defendants is found in their Amended Answer of August 3, 2016. This pleading contains no mention of § 42-150bb. Thus, the critical consideration is whether the opposing party was on notice of the statutory basis for the claim. Brewster Park, LLC v. Berger, 126 Conn.App. 630, 636, 14 A.3d 334 (2011). Because attorneys fees are permitted in interpleaders, it cannot be said that the claim of the Shehu defendants sufficiently apprised either the plaintiffs or Brass Mill that they were asserting a claim pursuant to a consumer contract or lease. This finding is further informed by the absence of any argument at trial or in the post-trial briefing addressing such a claim. Accordingly, the court finds that the Shehu defendants' failure to have raised properly a claim of attorneys fees specifically pursuant to § 42-150bb is fatal to their current endeavor. Awdziewicz v. City of Meriden, 317 Conn. 122, 139, 115 A.3d 1084 (2015) (trial court properly declined to address plaintiff's statutory claim not specifically pleaded and of which defendant was not put on notice).
Section 52-484 provides in pertinent part that, in an interpleader, the court " may tax costs at its discretion and, under the rules applicable to an action of interpleader, may allow to one or more of the parties a reasonable sum or sums for counsel fees and disbursements, payable out of such fund or property; but no such allowance shall be made unless it has been claimed by the party in his complaint or answer."
For the foregoing reasons, the motion for attorneys fees of Karl D. Shehu, Esq. and his law firm, Shehu, LLC is denied.