Opinion
FBTCV146044607
08-10-2016
Rosenberg & Press, LLC v. Success Village Apartments, Inc
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Michael P. Kamp, J.
I
BACKGROUND
On July 30, 2014, the plaintiff, Rosenberg & Press, LLC, filed the present action against the defendant, Success Village Apartments, Inc., seeking to collect attorney fees pursuant to a written retainer agreement dated February 1, 2013. The complaint contains three counts. The first count alleges breach of contract, the second count alleges quantum meruit, and the third count is a claim for unjust enrichment. The defendant answered the complaint and filed a special defense alleging that the plaintiff has been paid in full or in part for the amount claimed due.
A trial before the court was held on March 16, 17, and 21, 2016. The plaintiff filed a post-trial brief on April 18, 2016, and the defendant filed its post-trial brief on April 20, 2016.
After careful consideration of all the testimony and documentary evidence, the court makes the following findings. On February 1, 2013, the plaintiff and defendant entered into a written retainer agreement (agreement) whereby the plaintiff would provide legal services to the defendant. See Defendant's Exhibit A. The agreement could be terminated by either party by giving appropriate written notice pursuant to the requirements of paragraph 8 of the agreement.
The agreement covered a range of legal services that the plaintiff would provide to the defendant at an hourly rate of $175 per hour. The defendant agreed to pay the plaintiff a quarterly retainer of $10,000 that would be applied toward legal fees billed. The plaintiff was to provide an accounting each quarter for the legal services that it provided. The agreement also provided that the plaintiff would represent the defendant in foreclosure actions at an hourly rate of $175 per hour if the defendant was a named defendant in the action, and at an hourly rate of $250 per hour if the defendant initiated the action to collect common fees and other charges.
During late 2013 and early 2014, the relationship between the plaintiff and the defendant deteriorated. The defendant stopped paying its quarterly retainer in November 2013, and the agreement was terminated by January 2014. On February 17, 2014, and July 24, 2014, the plaintiff sent final billing statements to the defendant. See Defendant's Exhibits C, D. After some agreed upon adjustment made by the parties, the plaintiff is now seeking to recover from the defendant $89,979.14.
One portion of the disputed final invoice concerns charges related to nine foreclosure actions in which the defendant served as the plaintiff. See Defendant's Exhibits AA, AA1, BB, BB1, CC, CC1, DD1, DD2, EE, FF, GG, GG1, O, O1, O2, L, M. In each case, the defendant, acting as the plaintiff in the action, took title by a judgment of strict foreclosure. As part of the judgment in each case, the plaintiff filed an affidavit of attorney fees, and the court awarded attorney fees as well as other costs. Each affidavit requested a fee based upon an hourly fee of $250 per hour, which is the rate set forth in the agreement for foreclosure matters in which the defendant served as the plaintiff. In each case, the court made a finding, after a review of the evidence, as to what constituted a reasonable fee to be awarded. The total amount of fees awarded by the court in those nine cases was $29,525.
Also in dispute in the present action are three foreclosure matters in which the plaintiff seeks to recover a fee based upon the hourly rate set forth in paragraph 6b of the agreement. Specifically, the plaintiff seeks to recover $6,746.75 in the Nagwat Gad foreclosure, $3,225 for the Lori Kasich foreclosure, and $2,167.50 for the Myong Nam foreclosure. See Defendant's Exhibit D. With regard to the Gad foreclosure, the defendant argues that the fee is excessive because the plaintiff made improper service of process resulting in unnecessary motion practice, including a motion to reopen and dismiss filed by Bank of America. Max Rosenberg, an attorney and sole member of the plaintiff firm, testified that the service of process error was not as a result of any action by his law firm but, rather, the marshal who made service on the bank. As for the Kasich and Nam foreclosures, the defendant argues that attorney time was charged at a rate in excess of the $175 rate called for in the agreement, and that paralegal time was charged when there was no provision in the agreement for the defendant to pay for such services. The invoices do reflect some attorney time that was billed in excess of the agreed-upon rate, and the agreement made no provision for billing of paralegal time.
The plaintiff also seeks to recover $1,670 in connection with eight foreclosure defense actions. The defendant argues that the billing entries are excessive, contain inadequate descriptions of work performed, or are for work performed by paralegals.
There were three eviction proceedings for which bills were submitted and plaintiff seeks payment. The evictions were to be billed at a rate of $175 per hour as set forth in the agreement. The plaintiff seeks to recover $7,407.50 for the Bolling eviction, $581 for the Bakota eviction, and $175 for the Robinson/Doe eviction. The defendant alleges that excessive time was charged and, in some instances, at a rate higher than the $175 called for in the agreement. A review of the invoice in the Bakota eviction does reflect billing rates of $250, $275, and $350 per hour, which is greater than the agreed-upon hourly rate.
Also in dispute are legal fees charged for work performed by the plaintiff on a research request regarding a member, Loser Lane, of the defendant in the amount of $560. Furthermore, there was work performed by the plaintiff generically described as " Main File Work" in the amount of $2,852.50, and the plaintiff also submitted invoices for work performed under the title of " SVA Board Disputes" in the amount of $12,891. As to the latter, the defendant argues that this work was either not authorized by the representatives of the board of directors for the defendant, or it was work performed after the agreement was terminated.
The plaintiff seeks to recover $2,649.70 for work related to the Michaud bankruptcy. The defendant argues that the billing for this matter was excessive.
The final matter for which the plaintiff seeks recovery is work performed on municipal tax appeals. The parties entered into a separate agreement for work performed on tax appeals. See Defendant's Exhibit Z. Rosenberg testified that an agreement was reached whereby the defendant would pay plaintiff on an installment basis for fees earned on successful tax appeals brought both in Bridgeport and Stratford. Rosenberg testified that a final installment payment of $19,528.19 is due and owing. The defendant argues that the plaintiff has not provided sufficient evidence that the final installment was due.
II
DISCUSSION
A
Count One
The first count of the plaintiff's complaint is a claim for breach of contract. As previously discussed, the defendant and the plaintiff entered into a written retainer agreement on February 1, 2013. The defendant, in response to a request for admissions filed by the plaintiff, admitted that it entered into the agreement, that it received invoices for legal services rendered by the plaintiff, and that payment has not been made on those invoices.
" [T]he sum of damages awarded as compensation in a breach of contract action should place the injured party in the same position as he would have been had the contract been performed." (Internal quotation marks omitted.) Argentinis v. Gould, 219 Conn. 151, 157, 592 A.2d 378 (1991).
In each of the nine disputed foreclosure actions in which the defendant acted as the plaintiff, an affidavit of attorney fees was submitted to the court in support for an award of attorney fees as part of the foreclosure judgment. In each case, the court made a finding as to the reasonableness of the fee based upon the evidence presented. The court did not award an attorney fee in the amount requested in the plaintiff's affidavit in every case. For example, in the Martinez foreclosure, the plaintiff submitted an affidavit and requested an attorney fee of $2,100, and the court awarded a fee of $1,500. See Defendant's Exhibits AA, AA1. In the Anzellotti foreclosure, the plaintiff submitted an affidavit requesting an attorney fee of $3,100, and the court awarded a fee of $2,500. See Defendant's Exhibits EE and EE1. In the Trujillo foreclosure, the fee requested was $3,600, and the court awarded $2,880. See Defendant's Exhibits BB1, BB2.
This court is not going to substitute its judgment as to the appropriateness of the fee earned in each of these foreclosure actions for that of the court that heard each case, as that court was in the best position to review the evidence and make a determination as to an appropriate legal fee. Accordingly, the court finds that the defendant is in breach of the agreement by failing to pay the plaintiff $29,525 for its representation of the defendant in the nine foreclosure actions.
With regard to the Gad, Kasich, and Nam foreclosures, the plaintiff seeks to recover $12,139.25 in total fees.
With regard to the Gad foreclosure litigation specifically, expenses were incurred following a judgment entered by the court when Bank of America filed a motion to dismiss. The defendant characterizes these expenses as resulting from errors made by the plaintiff regarding improper service of process made by the process server. The court finds that the issues raised by the Bank of America motion were not the fault of the plaintiff but of the method of service made by the marshal. The plaintiff is seeking fees of $6,746.75 but has not provided sufficient documentation supporting the requested fee. The plaintiff did provide a detailed invoice for legal services in the amount of $2,654.50, however, and thus it is awarded a fee in that amount.
With regard to the Kasich foreclosure, the plaintiff seeks a fee in the amount of $3,225. However, almost all of the time submitted was work performed by a paralegal, Brian Mezick. There was no provision in the agreement for the defendant to pay for paralegal time. Moreover, the time submitted by Rosenberg was charged at the rate of $350 per hour, not the $175 required by the agreement. Therefore, the plaintiff is awarded a fee of $87.50.
As for the Nam foreclosure, the plaintiff is seeking a fee of $2,167.50. Both attorney and paralegal time was billed. The time billed for the two attorneys who worked on the file was at a rate of $250 per hour, not the agreed upon rate of $175. Accordingly, the plaintiff is awarded a fee of $420.
The total fee awarded for the Gad, Kasich, and Nam foreclosures is, thus, $3,162.
The plaintiff also seeks to recover fees of $1,670 in connection with the Barrios, Stevens, Saunders, Yearwood, Lapinski, Singleton, Neydy, and Gold foreclosure defense actions. These cases are covered by paragraph 6b of the agreement. A billing rate of $175 per hour applies. A review of the invoices in these cases shows either paralegal time was billed, or bills were submitted with no detailed entries. Excluding bills that contain these deficiencies, the plaintiff is entitled to recover $350 for cases in this category.
Next, there are three eviction matters for which the plaintiff seeks to recover legal fees. More specifically, the plaintiff is seeking a total of $8,163.50 in connection with the Bolling, Bakota, and Robinson/Doe evictions.
With regard to the Bolling eviction, the plaintiff has failed to submit a detailed invoice for the $7,092.50 previous balance that it claims is owed. It did, however, provide appropriate detailed time entries in support of charges of $315. The plaintiff is thus awarded $315 in the Bolling eviction.
With regard to the Bokota eviction, the plaintiff is seeking to recover $332.50. The hourly rate identified on the invoice by the attorneys who worked on the case was at the rate $275 to $350 per hour. However, even though the rate reflected on the invoice was in excess of the agreed-upon rate of $175, the actual amount charged was based upon the $175 rate. Accordingly, the plaintiff is awarded $332.50 for the Bokota eviction.
With regard to the Robinson/Doe eviction, the plaintiff is seeking $175 but has provided no detailed billing statements in support of the amount due. Therefore, the plaintiff is not awarded any fee in connection with this case.
The total awarded for all three eviction cases is, therefore, $647.50.
Furthermore, the plaintiff is seeking to recover $16,303.50 for legal work attributable to " SVA Board Disputes, " the research request for Loser Lane, and the work performed on the " Main File." This type of legal work appears to fall with paragraph 2 of the agreement. This paragraph of the agreement provides: " This contract will enlist our representation in the following matters: Review and assist compliance with State and Federal Laws Impacting the Operation and Management of a Co-Op, Foreclosure Action Litigation, Resale of Units, Review and Examination of By-Laws and Articles of Incorporation, Union Negotiations, Summary Process/Evictions, Zoning Litigation, Defense Litigation and miscellaneous litigation needed by co-op and requested in writing ." (Emphasis added.) Paragraph 7 of the agreement provides in relevant part: " You also may decide that we should not take every possible action that could or should be taken on your behalf because of limitations of your time, financial practicality or other factors. We will endeavor to discuss such aspects of the matter with you before committing our personnel or resources. We recognize that the final authority for resolving this matter lies with you and that we are working on your behalf pursuant to the authority you have given us ." (Emphasis added.)
With regard to the work performed on " SVA Board Disputes, " the billing records reflect that this work was performed at or after the time that the defendant terminated the agreement with the plaintiff. The evidence does support a finding that the board of directors for the defendant was operationally dysfunctional during this time period, as there was conflict between board members, and there were significant disagreements with the property manager hired by the defendant. There was also ongoing litigation regarding the defendant's elections and efforts to terminate the contract with the property manager. Although the court credits the testimony of Rosenberg that his firm attempted to assist the defendant in navigating these difficult times, the plaintiff should have done so with clear written authorization as to the scope of the work authorized by the board. The defendant disputes that any of this work billed under " SVA Board Disputes" was ever authorized to be performed. In the absence of any proof of such written authorization, the court cannot award the plaintiff attorney fees for this work.
Moreover, the work performed by the plaintiff entitled " Main File" and " Loser Lane Research" must fail for the same reason as the other work performed under this category: there is a lack of a clear, written authorization for this work to be performed. In addition, the invoices submitted do not reflect time entries to support the fees being charged. The invoices only reflect the amount owed and lack any detailed time entries. As such, the plaintiff is awarded no fees for work performed for the three disputed charges in this category.
The plaintiff also seeks to recover $2,649.70 for work performed on the Michaud Bankruptcy. However, the plaintiff has not submitted detailed billing invoices in support of these charges. The only invoices submitted reflect past due balances. In the absence of detailed bills the court cannot award the plaintiff attorney fees for this work.
The plaintiff also seeks to recover a payment of $19,528.19 for work performed on tax appeals taken on behalf of the defendant in both Bridgeport and Stratford, where property owned by the defendant is located. This work was performed pursuant to a separate fee agreement dated March 12, 2009. See Defendant's Exhibit Z. The fee agreement called for a 33 1/3% contingency fee for savings on any reduction of the assessment over a five-year period. The plaintiff commenced a tax appeal in both Bridgeport and Stratford, seeking a reduction in the real estate assessment. After negotiations with the town of Stratford, the defendant entered into a joint stipulation with the town for a reduction of the assessment from a value $6,483,200 to $5,807,200. See Defendant's Exhibit Z1. Similarly, the defendant entered into a series of joint stipulations with the city of Bridgeport that resulted in a meaningful reduction of the assessed property value. See Defendant's Exhibit Z2. The fee agreement required that the fee owed pursuant to the fee agreement be paid within ten days of the approval of the reduced assessment. In that case, the defendant asked that the payment of the fee be extended into installments so as to give it more time to pay. Rosenberg agreed to this arrangement to spread out the payment as an accommodation to the defendant. The court finds that the defendant did not make the final payment and owes the plaintiff $19,528.19.
Finally, the defendant has alleged a special defense of payment to count one. At trial, the defendant submitted copies of six checks from its account at Bank of America in support of its special defense. See Defendant's Exhibit HH. Tyreke Bird, a current member of the board of directors for the defendant, testified for the defendant concerning these checks, but Bird was not a member of the board of directors during the time when these checks were issued, and thus he had no direct knowledge concerning these payments. Additionally, Osi Korn-Rosenberg, the plaintiff's office manager, testified that she had direct knowledge of the receipt of these checks. Specifically, Korn-Rosenberg testified that all payments were credited either to outstanding balances on multiple files or credited to the main file. In some instances, retainer payments were allocated to files that are not the subject of this litigation. For example, plaintiff's exhibits 3 and 4 were offered to show how certain payments made by the defendant were allocated to different files. The court credits the testimony of Korn-Rosenberg that all payments made by the defendant were properly credited to the numerous files that the plaintiff maintained on behalf of the defendant. Accordingly, the court finds that the defendant has not met its burden of proof on its special defense.
Based upon the foregoing, the plaintiff is awarded $53,212.69 under count one of the complaint for the defendant's breach of the agreement.
B
Second and Third Counts
The second and third counts of the plaintiff's complaint state a cause of action in quantum meruit and unjust enrichment. The lack of a remedy under a contract is a precondition for recovery upon a theory of quantum meruit. Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001). A claim for unjust enrichment is not available in a situation where there is an enforceable express contract between the parties. United Coastal Industries, Inc. v. Clearheart Construction Co., 71 Conn.App. 506, 512-13, 802 A.2d 901 (2002). Because the plaintiff has a remedy under the first count of the complaint for breach of contract, judgment may enter in favor of the defendant on the second and third counts of the complaint.
III
CONCLUSION
For the foregoing reasons, judgment in the amount of $53,212.69 is entered in favor of the plaintiff as to count one of the complaint, and judgment is entered in favor of the defendant as to counts two and three of the complaint. Postjudgment interest of 10% is awarded pursuant to Conn. Gen. Statute § 37-3a.