Opinion
NBSP064616
03-10-2016
Sage Pond Place Limited Partnership v. Iris Schmoller et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTIONS FOR ATTORNEYS FEES AND RELATED SUBMISSIONS
Nicola E. Rubinow, J.
This memorandum of decision addresses the issues raised by the motions for attorneys fees filed in connection with representation of the defendant Iris Schmoller, and the objections and responses thereto filed by the plaintiff Sage Pond Limited Partnership (Sage Pond).
The court's resolution of the pending motions, objections and responses is best viewed in the context of the entirety of the parties' present high conflict, post-judgment litigation. On August 8, 2015, through counsel, Sage Pond filed a summary process action seeking to gain possession of a dwelling unit alleged to be the residence of Schmoller and another defendant, Richard Marks. On September 3, 2015, represented by Atty. David Pels, Schmoller filed a Motion to Dismiss the summary process action; on September 17, 2015, Sage Pond filed its objection to that Motion to Dismiss. After argument, this court delivered its decision granting Schmoller's Motion to Dismiss the summary process action and overruling Sage Pond's objection on November 5, 2015.
Marks has not appeared or participated in this litigation.
On December 1, 2015, Pels as attorney for Schmoller filed an initial Motion for Attorneys Fees, requesting an award related to her " successful defense" of the underlying summary process case. Motion for Attorneys Fees, 12/1/15. On January 13, 2015, through counsel, Sage Pond filed the Plaintiff's Objection to Motion for Attorneys Fees, with an Affidavit in Support of Objection to Motion for Attorneys Fees. On January 14, 2016, Atty. Cecil Thomas filed an appearance on Schmoller's behalf in addition to Pels, who had represented the tenant throughout all aspects of the underlying summary process litigation. On that date, the court conducted an evidentiary hearing and heard argument concerning the subject of attorneys fees.
It is uncontested that Pels and Thomas are attorneys employed by Greater Hartford Legal Aid, Inc. It is further uncontested that Sage Pond has retained private counsel to provide representation in all aspects of this litigation.
Paragraph 22 of a one-year lease between the parties effective January 1 through December 31, 2011, expressly provides that " In the event that the Landlord takes action to enforce the terms of the Agreement . . . and the Landlord secures a judgment against the Tenant . . . then the tenant agrees to pay all costs, including reasonable attorneys fees." (Ex. A.) This lease does not appear to contain a corollary provision allowing the tenant to recover reasonable attorneys fees in the event that the tenant prevails in an action brought against her by the landlord. While Sage Pond vigorously argues that it should not be obligated to pay attorneys fees under the circumstances of this particular case, the plaintiff does not appear to contest that, generally, " the reciprocal attorneys fees in the consumer contracts statute, General Statutes § 42-150bb, applies to landlord-tenant rental agreements, " an issue resolved by the Appellate Court in Centrix Management Co., LLC v. Valencia, 145 Conn.App. 682, 684 and 690, 76 A.3d 694 (2013) (Emphasis added).
On January 15, 2016, Pels as attorney for Schmoller filed a Supplemental Motion for Attorneys Fees reflecting " the time [Pels] spent in court on the Motion for Attorneys Fees on January 14, 2016, " along with an Affidavit in Support of Motion for Attorneys Fees.
On January 22, 2016, through counsel, Sage Pond filed the Plaintiff's Supplemental Brief in Further Support of its Objection to Greater Hartford Legal Aid's Motion for Compensation. The text of the January 22, 2016 Supplemental Brief stated in part: " On January 13, 2016, the Plaintiff sent Defendant's counsel a settlement offer with respect to the Defendant's Motion for Attorney Fees"; Sage Pond attached a document to this Supplemental Brief which purportedly represents a copy of the referenced " settlement offer." Later on January 22, 2016, Schmoller, through counsel, filed a Motion to Strike and Memorandum of Law addressed to the attached document, submitting that: the plaintiff had proffered this document as an evidentiary exhibit at the January 14, 2016 hearing; the document presented " an email exchange between the parties"; Schmoller had objected to the court's review of that exhibit; the court had sustained the defendant's objection and had the exhibit marked for identification without reviewing its content.
While the court has studied the text of the January 22, 2016 Supplemental Brief, recognizing this as argument submitted by counsel, the court has not examined the document which separated from the argument portion of the brief.
On January 28, 2016, Schmoller, through counsel, filed her Reply to Plaintiff's Supplemental Brief. On February 3, 2016, through counsel, Sage Pond filed the Plaintiff's Motion to Reargue and for Reconsideration and Memorandum of Law addressing the document at issue. The court heard argument on the outstanding issues on February 4, 2016.
On February 9, 2016, Pels as attorney for Schmoller filed a Second Supplemental Motion for Attorneys fees with two supporting affidavits, seeking awards related to: the time Pels spent in review of the plaintiff's pending submissions; the time Pels spent at the February 4, 2016 hearing of the outstanding matters; and the time Thomas spent preparing the January 28, 2016 Reply to the Plaintiff's January 22, 2016 Supplemental Brief.
Although Thomas served as counsel eliciting direct testimony from Pels at the January 14, 2016 hearing, a request for attorneys fees related to that legal work has not been submitted.
By a fair preponderance of the evidence, presented through of the testimony provided on January 14, 2014, relevant affidavits submitted, and review of the pleadings, the court finds as follows:
Pels has been an attorney licensed to practice law in the state of Connecticut since 1974. For more than forty years, he has continuously practiced in association with community organizations representing individuals who qualify for the organizations' legal assistance. During this period, his practice has focused issues related to landlord/tenant law; while employed by Greater Hartford Legal Assistance, Inc. (GHLA), each year Pels typically provides full representation for approximately eighty litigants in housing matters, and limited representation and/or legal advice for approximately one hundred sixty more litigants involved in housing matters. Pels appears regularly in the Housing Sessions of the Superior Court in Hartford and New Britain, and has some experience arguing housing matters before the Supreme Court in this state. Pels regularly provides training and mentoring for other lawyers at GHLA to teach the legal skills required to represent clients in housing matters. Given his level of skill, experience and expertise in, Pels also has been called upon to provide training sessions on the subject of landlord/tenant law for the Connecticut Bar Association, for various state agencies and for non-profit groups. The court fully credits the evidence establishing that in the greater Hartford community in 2015 and 2016, a fair and reasonable fee rate for a skilled and experienced lawyer, such as Pels, who has acquired a high level of expertise in the area of landlord/tenant law over the course of more than forty years of practice in that area, is $350 per hour. The fully credible evidence further establishes that Pels personally expended 12.5 hours of legal and necessary support services in connection with matters related to Sage Pond's proposed eviction of Schmoller prior to and through the court's November 5, 2015 dismissal of the underlying summary process case. (Ex. B; Tes. Pels.) In addition to considering all requisite factors, the court has applied the lodestar method of calculating attorneys fees in this case. In sum, credible evidence fully supports the finding that for representation of a tenant like Schmoller throughout her summary process action brought by Sage Pond, including but not limited to preparation and argument to the court of a motion to dismiss such as that in which Schmoller prevailed, it is reasonable for a skilled and experienced lawyer such as Pels to have expended a total of 12.5 hours for his work on the underlying summary process action and the postjudgment litigation in its entirety; that a fair and reasonable rate of attorneys fees for that aspect of Pels's work should be assessed at the rate of $350/hour; and that the total value of the legal services related to the summary process case totals $4, 375.
Representing tenants, a large proportion of Pels' case load requires lengthy preparation and client-support; in contrast to the work of lawyers representing landlords, a great number of the cases in which the lawyers represent tenants do not quickly settle, but require full litigation through trial and thereafter. (Tes. Pels.)
In reaching this conclusion, the court has been guided by the principles established for determining the award of attorneys fees as set forth in Laudano v. City of New Haven, 58 Conn.App. 819, 822, 755 A.2d 907 (2000) (citing proper method for and specific criteria to be considered when determining attorneys fees for the prevailing party in the context of 42 U.S.C. § 1988). In determining whether to award attorneys fees and, if so, the amount of fees to award, the court has considered all relevant factors without seizing on one to the exclusion of others, thus including time and labor expended; the novelty and difficulty of legal issues; the level of skill necessary to perform legal services; counsel's preclusion from involvement in other cases while engaged in the present representation; customary fee, if any; fixed fee or contingent fee; time limitations imposed by the client or circumstances; the financial amount involved; the results, nature and length of counsel's relation with the client; " the 'undesirability' of the case [involving an indigent tenant facing eviction and] the experience, reputation, and ability" of the attorneys." Id., 823 n.9. See Rodriguez v. Ancona, 88 Conn.App. 193, 202-03, 868 A.2d 807 (2005). See also Laudano v. City of New Haven, Superior Court, judicial district of New Haven, Docket No. 330523, (May 14, 1998, Blue J.) (aff'd, 58 Conn.App. 819, 755 A.2d 907 (2000) (in an action brought pursuant to 42 U.S.C. § 1988, considering preparation, eight days of jury selection, and sixteen days of trial, for attorneys with only twenty years of experience, court properly awarded attorneys fees at a rate of $250 per hour in 1997). See also
" The 'lodestar' component of an attorneys fee is the product of 'the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.'
Finding the relevant supporting affidavit of attorneys fees to be fully credible, the court further concludes that as would an attorney with like skills and experience in the community, Pels reasonably expended 2.7 hours for his participation in the January 14, 2016 hearing on the motion for attorneys fees and the plaintiff's objection thereto. (Affidavit in Support of Motion for Attorneys Fees, 1/15/16.) Fair and reasonable attorneys fees for that aspect of Pels's work at the rate of $350/hour totals $945.
In addition to awarding attorneys fees related to the successful motion to dismiss, for the reasons stated in this decision, the court also finds it reasonable and appropriate to award attorneys fees related to the hearings prompted by the plaintiff's submission of motions and briefs in opposition to the request for that initial award. " It is within the discretion of the trial court to award supplementary attorneys fees for various posttrial motions. See
Also finding the relevant supporting affidavit of attorneys fees to be fully credible, the court further concludes that as would an attorney with like skills and experience in the community, Pels reasonably expended 2 hours of time for his participation in review of the Plaintiff's February 3, 2015 Motion to Reargue and for Reconsideration and for his participation in the February 4, 2015 court hearing related to that matter. (Affidavit in Support of Motion for Attorneys Fees, 2/5/16.) Fair and reasonable attorneys fees for that aspect of Pels' work at the rate of $350/hour totals $700.00.
Further finding the relevant supporting affidavit of attorneys fees to be fully credible, the court concludes that Thomas, who was admitted to practice in 2006 and who has continuously worked at GHLA primarily representing tenants in housing matters since that time, spent a total of 1.5 hours drafting the January 28, 2016 Reply to Plaintiff's Supplemental Brief. Using the principles referenced above, the court concludes that $225/hour represents a fair and reasonable rate of attorneys fees for legal work done by Thomas, as this rate is appropriate for an attorney with like skills and experience in the community. (Affidavit in Support of Addendum to Motion for Attorneys Fees, 2/8/16.) Fair and reasonable attorneys fees for that aspect of Thomas's legal work at the rate of $225/hour totals $337.50.
Accord,
The plaintiff has presented several arguments in opposition to the pending motions for attorneys fees. Sage Pond argues that attorneys fees should not be awarded because Schmoller is represented by GHLA and thus " has incurred no legal fees." (Plaintiff's Objection to Motion for Attorneys Fees, 1/13/16.) The court is not persuaded. Our state has long recognized that in determining whether to award counsel fees, trial courts should not discriminate against nonprofit legal service entities or their clients. See, e.g., Benavides v. Benavides, 11 Conn.App. 150, 154, 526 A.2d 536 (1987) (trial court improperly reduced award of attorneys fees due to the nonprofit status of prevailing party's counsel); Altraide v. Altraide, 153 Conn.App. 327, 337, 101 A.3d 317 and n.8, 153 Conn.App. 327, 101 A.3d 317, 324 (2014) (" a court may order the full amount of reasonable attorneys fees, even when the attorney was providing representation for free or at a reduced cost"); Gil v. Gil, 110 Conn.App. 798, 806, 956 A.2d 593 and n.7, 110 Conn.App. 798, 956 A.2d 593 (2003). As aptly observed in the January 28, 2016 Reply to Plaintiff's Supplemental Brief, even though Schmoller may not be personally responsible for financial payment to GHLA, " 'Legal services for the poor is free only to the indigent person. Someone has to pay for it and that someone--the taxpayer--should be compensated, the compensation being the increased effectiveness of the legal services program.'" Benavides v. Benavides, supra, 11 Conn.App. 154 n.1. Thus, the court declines to accept Sage Pond's assertion that because Schmoller has been represented throughout by GHLA, " [i]t simply would not be appropriate for the court to award attorneys fees in this context." (Plaintiff's Objection to Motion for Attorneys Fees, 1/13/16.)
Notwithstanding Sage Pond's proposed perspective on the implication of awarding attorneys fees where free or reduced-cost legal services, " [o]ur Supreme Court has recognized the disparity of power between landlords and tenants and has acknowledged that subjecting landlords to the payment of punitive damages materially increases the likelihood of deterring landlords' abuses of power.
Sage Pond also argues that the requested fees are not reasonable. (Plaintiff's Objection to Motion for Attorneys Fees, 1/13/16.) In calculating attorneys fees for work undertaken by Pels, on Schmoller's behalf and in response to actions taken and pleadings filed by the plaintiff, the court has carefully considered the evidence in its entirety and, applying all the relevant criteria as found above, has determined that an hourly rate of $350 should be assigned to his legal work; using like criteria, the court has further determined that an hourly rate of $225 should be assigned to the legal work performed by Thomas, and that a reasonable number of hours were spent by GHLA attorneys in connection with the both underlying summary process action and the highly contested, complex post-judgment litigation concerning attorneys fees. Accordingly, the court declines to adopt the rate or calculation of attorneys fees proposed by Sage Pond with regard to the legal services provided for Schmoller by Pels and Thomas in this case.
As discussed above, the court has placed great weight upon Pels' four decades of experience representing indigent tenants in housing matters, and the expertise in landlord/tenant law that has led to his involvement in teaching activities not only for GHLA but for the community as well. Upon review, the court notes that Sage Pond's citation to
Sage Pond has further argued that " As a Matter of Law, The Court Cannot Grant Greater Hartford Legal Aid's Motion to Recover Funds for Itself Because It has a Non-Waivable Conflict" with Schmoller. (Plaintiff's Supplemental Brief, 1/21/16.) To support this aspect of its argument, Sage Pond attached to its January 22, 2016 Supplemental Brief a document ostensibly representing email correspondence allegedly occurring between the parties' counsel; while the court has not reviewed or examined the document, the plaintiff's brief clearly admits that the document reflects settlement negotiations that occurred prior to the January 14, 2016 argument on the December 1, 2015 Motion for Attorneys Fees. As previously noted, on January 22, 2016, through counsel, Schmoller moved to strike this document from Sage Pond's brief and from court's consideration, asserting that by submitting the document appended to its Supplemental Brief, " the Plaintiff deliberately chose to present an issue and exhibit which had been specifically excluded from evidence by this court, " and asserting that the plaintiff is precluded from presenting or relying upon an exhibit which the court has declined to accept as evidence. To further promote the court's review of the document, Sage Pond filed its February 3, 2016 Motion to Reargue and For Reconsideration, emphatically requesting the court to examine the email communications ostensibly relating to settlement negotiations conducted prior to the January 14, 2016 hearing, notwithstanding this court's ruling on that date that such document would not be accepted as evidence, but would be marked only for identification. In Sage Pond's February 3, 2016 Motion to Reargue and for Reconsideration, the plaintiff submits that evidence of " the settlement offer is being offered to demonstrate that a conflict of interest exists under the Professional Rules of Conduct as to the Defendant's attorney."
See footnote 1 to Sage Pond's February 3, 2016 Motion to Reargue and For Reconsideration, admitting that " [t]he email exchange was . . . attached to the Plaintiff's January 22, 2016 supplemental brief."
See, e.g.,
Having analyzed the immediately foregoing issues in the context of the pending Motions for Attorneys Fees, the underlying summary process action, and the postjudgment litigation, the court has decided to grant the Plaintiff's February 3, 2016 Motion for Reconsideration, but also denies its Motion for Reargument, as the subject has been exhaustively briefed and was thoroughly argued at the hearings on January 14, 2016 and again on February 4, 2016.
Even upon reconsideration, however, and despite the intensity of Sage Pond's advocacy, the court finds no just cause for examining the attached document at this stage of the proceedings. Resubmitting, in another mode, the assertions presented through in its January 13, 2016 Objection to Motion for Attorneys Fees and vigorously raised at the January 14, 2016 hearing, Sage Pond's January 22, 2016 Supplemental Brief submits that the court should examine the document because, among other claims, " Defense counsel's pursuit of this motion [for attorneys fees] provides no value to the Defendant [Schmoller]." While continuing to decline to examine the document whose content is made clear through the text of Sage Pond's briefs, the court has determined that even if the representations related to settlement negotiations, as set forth in the plaintiff's January 22, 2016 Supplemental Brief and/or its February 3, 2016 Motion to Reargue and for Reconsideration are found to be true, and even if Sage Pond did extend a settlement offer to Schmoller through her attorney, such an event does not create a conflict of interest within the constraints of the Rules of Professional Conduct so as to preclude GHLA's participation in the matter or to limit access to attorneys fees in this case. Similarly, the court finds that even if the representations in the plaintiff's January 22, 2016 Supplemental Brief and/or its February 3, 2016 Motion to Reargue and for Reconsideration are true, and even if Schmoller, through her attorney, did reject a settlement offer tendered by the plaintiff, such an event does not create a conflict of interest precluding GHLA's participation in the matter or access to attorneys fees within the constraints of Rules of Professional Conduct. Moreover, even if the representations in the plaintiff's January 22, 2016 Supplemental Brief and/or its February 3, 2016 Motion to Reargue and for Reconsideration are true, and even if the defendant, through counsel, rejected a settlement offer proposed by Sage Pond, there is no reasonable basis upon which the court could conclude that such rejection did not accrue to the benefit of the defendant. The plaintiff's wishing such to be true does not make it so; Sage Pond's desire that the court construe a rejected settlement negotiation as an act that is detrimental to GHLA's client does not create a conflict of interest within the constraints of the Rules of Professional Conduct precluding an award of attorneys fees in this case.
See
The court finds that the analysis of the issues related to the document, presented through the January 22, 2016 Motion to Strike and through the January 28, 2016 Reply to Plaintiff's Supplemental Brief, have great merit. There is no basis, in law or fact, requiring this court to speculate as to the circumstances affecting a decision that may have been made by the Sage Pond to tender an offer, or affecting a decision that may have been made by Schmoller or her authorized agent to decline that offer. To resolve the pending issues related to attorneys fees, this court need not involve itself in issues related to the value of any settlement offer that may have been promoted by Sage Pond on any issue, even if the offer related to attorneys fees. This court need only resolve those contested issues that a party to litigation chose to have addressed by the judicial authority, instead of accepting a settlement offer. Accordingly, the court this date will grant the January 22, 2016 Motion to Strike, leaving intact the court's January 14, 2016 ruling with respect to the document ostensibly reflecting pre-hearing settlement discussions.
WHEREFORE, the court hereby OVERRULES the Plaintiff's Objection to Motion for Attorneys Fees filed January 13, 2016; GRANTS the Motion to Strike filed January 22, 2016; and has GRANTED the Plaintiff's Motion to Reargue and for Reconsideration filed February 3, 2016.
AND WHEREFORE, as this court finds the defendant has established all of the prerequisites for recovery of attorneys fees for the reasons set forth above, the court GRANTS the December 1, 2015 Motion for Attorneys Fees; GRANTS the Supplemental Motion for Attorneys Fees filed January 15, 2016; and GRANTS the Second Supplemental Motion for Attorneys Fees filed February 9, 2016. Sage Pond Limited Partnership is therefore liable to pay a total of $6, 357.50 in attorneys fees, representing work performed for Schmoller or necessitated in response to objections and pleadings submitted by the plaintiff. That work is accounted for above and summarized as follows:
$4, 375.00 representing 12.5 hours for work conducted by Pels at the rate of $350/hour; $945.00 representing 2.7 hours for work conducted by Pels at the rate of $350/hour; $700.00 representing 2.0 hours for work conducted by Pels at the rate of $350/hour; $337.50 representing 1.5 hours for work conducted by Thomas at the rate of $225/hour.
Malcolm v. Diaz, Superior Court, judicial district of Hartford, Housing Session, Docket No, HDSP-156276 (Mar. 3, 2011, Oliver J., awarding Pels $300 per hour five years ago following granting of a motion to dismiss brought on his client's behalf in a summary process matter); Carabetta Management Co. v. Martin, Superior Court, judicial district of Hartford, Housing Session, Docket No. HDSP-154717 (Aug. 5, 2010, Peck, J.) (awarding Pels $300 per hour six years ago following landlord's withdrawal of a summary process action brought against his client).
Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)." Stutz v. Shepard, 279 Conn. 115, 128, 901 A.2d 33 (2006). See also Laudano v. City of New Haven, supra, 58 Conn.App. 822-23 and n.9.
Stokes v. Norwich Taxi, LLC, 289 Conn. 465, 493-94, 958 A.2d 1195 (2008) (upholding the trial court's award of attorneys fees for both the trial and for various posttrial motions)." Carabetta Management Co. v. Martin, supra, Docket No. HDSP-154717.
Suburban Greater Hartford Realty Management Corp. v. Santana, Superior Court, judicial district of Hartford, Housing Session, Docket No. HDSP-162878 (Sept. 28, 2015, Woods, J.).
Freeman v. Alamo Management Co., 221 Conn. 674, 683-84, 607 A.2d 370 (1992). The same reasoning is true for the award of reasonable attorneys fees . The award of reasonable attorneys fees may deter violations, encourage tenants to seek relief and ensure competent counsel for tenants who do litigate." (Emphasis added.) Rodriguez v. Ancona, supra, 88 Conn.App. 203 (assessing validity of attorneys fees and damages awarded upon tenant's successful action for entry and detainer).
Carabetta Management Co. v. Sealy; Superior Court, judicial district of Hartford, Housing Session, Docket No. HDSP-160135 (Nov. 8, 2011, Peck, J.) ; provides little guidance with regard to determining an appropriate award of attorneys fees for Pels. The issues in Carabetta Management Co. v. Sealy involved a request for fees related to Attorney Thomas's successful representation of a GHLA client in a summary process case; Pels merely served as the conduit through which Thomas provided evidence related to his personal training and experience at the attorneys fees hearing. In Carabetta Management Co. v. Sealy, when Thomas had only approximately five years of experience at the bar, Judge Peck awarded an hourly rate of $200.00 representing his legal services. Id.
Canton Motorcar Works, Inc. v. DiMartino, 6 Conn.App. 447, 455, 505 A.2d 1255, 1260 (1986).
Altraide v. Altraide, supra, 153 Conn.App. 327, 337 and n.8; Gil v. Gil, supra, 110 Conn.App. 806 and n.7; Benavides v. Benavides, supra, 11 Conn.App. 154 and n.1.