Opinion
No. X08 FST CV04-4004519S
February 18, 2010
Memorandum of Decision on Plaintiff's Motion for Award of Attorneys fees and Costs Post-Trial (No. 221)
Procedural Background
This is an action by a creditor of Morningside Partners Limited Partnership ("Morningside") brought against certain of the limited partners to collect on a Judgment which had previously entered against the limited partnership. On October 30, 2008 this court entered judgment in this action for the plaintiff against the defendant limited partners in the amount of $89,396.91 consisting of $61,542.54 in damages and prejudgment interest under Conn. Gen. Stat. § 37-3a in the amount of $27,854.37. Thereafter both the plaintiff and the defendants filed motions to reargue which were denied by memorandum of decision dated June 30, 2009 with the exception that reargument was granted to the defendants Coastal Pallet Corp., Peter Standish, and Bernice Donahue (the "Coastal Pallet defendants") on the calculation of interest under § 37-3a(a). Following reargument on that limited point the amount of prejudgment interest awarded was reduced on December 21, 2009 to $26,238.24, bringing the total amount of the judgment to $87,780.78 as of October 30, 2008 (the original date of judgment).
The plaintiff's complaint contained a claim for an award of attorneys fees and costs. By stipulation entered at the start of trial, the plaintiff was permitted to reserve its rights to claim attorneys fees and costs by post-trial motion if the court awarded judgment in plaintiff's favor. Following the entry of judgment in its favor and the denial of motions to reargue, the plaintiff has now moved for an award of attorneys fees and costs supported by a detailed affidavit of counsel. The motion has been briefed and argued by all parties and this memorandum of decision will be the court's ruling on that motion.
Discussion: Findings of Fact and Conclusions of Law A. Entitlement to an Award of Attorneys Fees and Costs CT Page 5312
"Connecticut case law follows the general rule, frequently referred to as the American Rule, that attorneys fees are not allowed to the prevailing party as an element of damage unless such recovery is allowed by statute or contract." Atlantic Mortgage Investment v. Stephenson, 86 Conn.App. 126, 132 (2004). Plaintiff's claim for an award of counsel fees in this case is not based on any statute which provides for an award of attorneys fees or exemplary or punitive damages equivalent to attorneys fees. The plaintiff's claim is contractual in nature, being based entirely on provisions in the loan documents relating to a $150,000 revolving line of credit extended to Morningside by the plaintiff in October of 1995. The "Revolving Credit Agreement" (Plaintiff's Ex. 2) between the parties which provides in Section 6.05 ("Costs, Expenses and Taxes"):
The Borrower agrees to pay on demand all costs and expenses in connection with the execution, preparation, delivery, filing, recording, and administration of the Loan and Security Documents, and other documents to be delivered under the Loan and Security Documents, including without limitation the reasonable fees and out-of pocket expenses of counsel for the Lender with respect thereto and with respect to advising the Lender as to its rights and responsibilities under the Loan and Security Documents, and all costs and expenses, if any, in connection with the enforcement of the Loan and Security Documents and the other documents to be delivered under the Loan and Security Documents.
One of the documents to be delivered under the Loan and Security Documents was a Promissory Note in the amount of $150,000 payable to the plaintiff (Plaintiff's Ex. 3) which provides, in part at page one:
In the event of default, said Note shall be due and payable together with all taxes levied or assessed upon said sum against the Holder of this Note, and all costs of collection, including a reasonable attorneys fee incurred in the collection thereof, or in the foreclosure of the mortgage securing said Note in protecting or sustaining the lien of said mortgage.
The note further provides, at page 3 that "Each obligor agrees: . . . "to pay all costs of collection and reasonable attorneys fees incurred or paid by the Holder in enforcing this Note."
The Promissory Note is signed by the parties in exactly the same language as the Revolving Credit Agreement (see footnote 1) except that, as is customary with promissory notes, it is not signed by the plaintiff lender, Sotavento Corporation.
The defendants concede that these provisions of the 1995 loan documents entitled the plaintiff to an award of counsel fees in plaintiff's antecedent lawsuit for nonpayment of sums due under the 1995 promissory note and revolving loan agreement which resulted in a final judgment against the limited partnership in the amount of $163,838.20, which included an award of $86,433.80 in attorneys fees. See The Sotavento Corporation v. Morningside Partners Limited Partnership et als, Docket No. CV96-0338583S, Superior Court, Judicial District of Fairfield at Bridgeport (April 25, 2004, Nadeau, J.), affirmed 76 Conn.App. 909 (2003). But defendants take issue with the plaintiff's claim that it is also entitled to an award of attorneys fees pursuant to those provisions in this action against limited partners of Morningside to collect the judgment amount from the earlier lawsuit. Those provisions, defendants claim, do not apply because this is not an action for nonpayment or breach or "enforcement" of the promissory note or the revolving loan agreement, but is "an equitable enforcement on behalf of a creditor of the terms of the limited partnership agreement . . ." (Coastal Pallet memorandum, p. 6.) Defendants argue that this action seeks to enforce the Amended and Restated Agreement of Limited Partnership of Morningside (Plaintiff's Ex. 1) which contains no provision for any award of attorneys fees or costs of collection. The plaintiff responds that this action is a continuation of the enforcement of the Note and Revolving Credit Agreement, based ultimately on the obligations of those two documents, and that the collection cost provisions of those documents are applicable to this action and entitle the plaintiff as prevailing party to an award of attorneys fees and costs. For the reasons stated herein the court agrees with the plaintiff's position.
The four limited partners of Morningside who are defendants in this action were also named defendants in that earlier action as alleged garnishees and then later intervened derivatively as defendants, but the judgment entered only against the limited partnership.
The date of the Superior Court final judgment post dates the affirmance by the Appellate Court because, after the judgment was affirmed, Judge Nadeau reopened the judgment and awarded further attorneys fees incurred in defending against the appeal.
The collection cost provision of the Revolving Credit Agreement is broadly worded. It is not limited to collection efforts that are strictly an "enforcement" of the note or loan agreement. It applies to ". . . all costs and expenses, if any, in connection with the enforcement of the Loan and Security Documents and the other documents to be delivered under the Loan and Security Documents." (Emphasis added.) The phrase "in connection with" is defined in the Cambridge Dictionary of American Idioms as "having to do with a particular thing," and has been recently construed to broaden the scope of the provision to which it applies. In Key Air v. Commissioner of Revenue Services, 294 Conn. 225 (2009) the issue was whether or not certain flight training for professional pilots required by federal regulations was exempt from the sales tax on business management services under an exception . . . when such services are rendered in connection with an aircraft leased or owned by a certificated air carrier or in connection with an aircraft which has a maximum certificated take-off weight of six thousand pounds or more." (Conn Gen. Stat. 12-407(a)(37)(J)(iii)). It was undisputed that the pilot training was a business management service and that the size of the Key Air's clients' aircraft came within the ambit of the statute, but the Commissioner contended that the pilot training services were not "rendered in connection with" qualifying aircraft. Focusing on the scope of the words "in connection with" the Supreme Court held that the exemption applied because the training was an integral part of the relationship between the plaintiff and its client aircraft owners:
The dictionary defines the word `connection' as, inter-alia, a `causal or logical relation or sequence . . . contextual relation or association . . . [or] relationship in fact . . .' Merriam-Webster's Collegiate Dictionary (10th Ed. 1993). Accordingly, the plain meaning of the statutory phrase `in connection with' necessarily includes any factual, contextual, or causal relationship. Thus, with respect to the pilot training services at issue, the plain meaning of the words `in connection with' implies that, if the services have some cognizable relation or association with the statutorily identified aircraft, those services are excluded . . .
In support of its "broad interpretation of the `in connection with' language" Id., 236, the Key Air court relied on a similar construction of the phrase in Stanley Works v. Hackett, 122 Conn. 547 (1937), where it was held that a Connecticut corporation receiving dividends from Canadian corporations doing business solely in Canada received such income "in connection with business without the state." Id., 554.
Application of the Key Air rationale clearly results in a holding that the present action against the limited partners was brought "in connection with" the enforcement of the Revolving Credit Agreement and the Note to which it refers. The ultimate obligation underlying the judgment sued upon in this case emanates from the credit agreement and the note. If the $150,000 loan had been paid in full before this action was commenced, this action would not have been necessary. This action is the end product of a "causal or logical relation or sequence" that started with the failure of Morningside to pay the debt evidenced by the credit agreement and the note. There is a cognizable factual relationship between the 1995 loan documents and this action against the limited partners. This is so even though this court has held that this action is not an action on the note for statute of limitations purposes and even though it has been held by this court (Adams, J.), affirmed on appeal, that this case is a different cause of action from the earlier Sotavento Corp. v. Morningside Partners Limited Partners debt action for purposes of res judicata. Sotavento Corp. v. Coastal Pallet Corp, 102 Conn.App. 828 (2007). Those are different legal concepts governed by different considerations from the contract construction issue now before the court.
The case of Buccino v. Cable Technology, Inc., 25 Conn.App. 676 (1991), cited by defendants, is readily distinguished. In that case the court affirmed the denial of an award of attorneys fees to a plaintiff landlord in litigation against his tenant for breach of leases which contained a provision for awarding counsel fees "in the event the [plaintiffs] are required to employ an attorney in order to enforce a provision of [the] lease." The plaintiff in that case failed to prove almost all his claims of breach of lease, and recovered only nominal sums for some minor damage to the premises. His recovery of two months' rent was for a time period after the lease had expired and therefore was not for breach of lease, but for use and occupancy which the tenant had conceded before trial. In this case, the plaintiff has recovered a substantial award of damages and no claim was conceded before or during trial. And, most significantly, because of the inclusion of the words "in connection with" [enforcement of the note], the plaintiff in this case has a much broader collection cost provision than did Mr. Buccino.
The court therefore concludes that the collection cost provision of the Revolving Credit Agreement is broad enough to encompass the prosecution of this action against the limited partners to collect the judgment against the partnership. Likewise, the court concludes that the collection cost provision of the Note is applicable because this action involved a "collection" of the sums found to be due under the note. That provision by its own terms is not limited to "enforcement" or breach proceedings. And the court further concludes that those provisions are binding on the defendant limited partners because of the court's holding that their actions in violation of the limited partnership agreement made them jointly and severally liable for the obligations of the limited partnership; and because of their signatures by power of attorney on the Revolving Credit Agreement and the Note (which were admitted as full exhibits in the case without challenge to the defendants' "joint and individual" signatures thereon).
B. Amount of Attorney Fees and Costs
The Supreme Court has remarked that "[a] court has few duties of a more delicate nature than that of fixing counsel fees." (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunch, Inc., 265 Conn. 210, 258 (2003). This court must now address that delicate task, which has been the object of the court's attention for some time.
The plaintiff has submitted an affidavit of Atty. Edward V. O'Hanlan of Robinson Cole, LLP, detailing the legal services performed and costs and disbursements incurred by him and other attorneys and paralegals at the firm and billed to the plaintiff Sotavento Corporation for prosecuting this action over an almost six-year period from August 1, 2003 through June 30, 2009 (plus some unbilled time between July 1, and August 31, 2009). The total fees charged to Sotavento Corp. during that period of time are $156,612.66 (637.80 hours at an average rate of $245.55) and the costs and disbursements (net of some "excluded costs") come to $7,113.36.
This sum includes an estimated ten hours of billable time for reply briefing and argument of this motion.
The attachment to the affidavit states the overall average hourly rate as $234.66. $245.55 is the average hourly rate determined by the court by dividing the total fees claimed ($156,612.66) by the total hours expended (637.80).
Except for the unbilled time in the summer of 2009 ($8,989.00) the affidavit states that all the foregoing fees and disbursements have been paid in full to Robinson Cole by the plaintiff Sotavento Corporation. The affidavit states in ¶ 18 that the fees charged are at or below Robinson Cole's normal and customary rates charged to clients for similar work in 2003, 2004, 2005, 2006, 2007, and 2008, and that they are "competitive and reasonable, both for the experience of the lawyers involved, the rates charges by other commercial trial lawyers of similar experience, and . . . especially, the complexity and detail of the factual record and novel issues that were required to be addressed . . ." The affiant also points out that "in nearly every invoice [there can be seen] `courtesy discounts' and time logged but not charges by [Atty. O'Hanlan] as billing partner on the file." ( Id.) An examination of the invoices attached to the affidavit reveals that other attorneys working on the file also wrote off or designated as "No Charge" certain time entries. The affidavit at ¶ 12 also speaks of $744.37 in travel, parking, messenger and overnight delivery charges which were incurred by the law firm and reimbursed by Sotavento Corp., but subtracted from the costs claimed herein since they "could be seen as having been for the convenience of the client and/or law firm rather than as objectively necessary for the prosecution of the action." The remaining costs and disbursements claimed are summarized as "deposition and trial transcript fees, extraordinary copying charges, exhibit preparation charges, and commercial legal research service charges." ( Id.) The total combined fees and disbursements claimed comes to $163,726.02.
For instance, on the invoice of 10/13/06 Atty Peloso wrote off a total of 1.2 hours and Atty. Keller wrote off a total of 1.5 hours. On the invoice of 12/30/08 Atty Peloso write off 6.2 hours and Atty. Donlon wrote off 0.3 hours.
"The amount of fees to be awarded rests in the sound discretion of the trial court and will not be disturbed on appeal unless the trial court has abused its discretion 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."(Citation and internal quotation marks omitted) Rodriguez v. Ancona, 88 Conn.App. 193, 201-2 (2005).
The determination of reasonableness of attorneys fees appropriately takes into consideration a range of factors identified by our appellate courts.
It is well established that a trial court calculating a reasonable attorneys fee makes its determination while considering the factors set forth under Rule 1.5(a) of the Rules of Professional Conduct . . . These factors include the time and labor spent by the attorneys, the novelty and complexity of the legal issues, fees customarily charged in the same locality for similar services, the lawyer's experience and ability, relevant time limitations, the magnitude of the case and the results obtained, the nature and length of the lawyer-client relationship, and whether the fee is fixed or contingent . . . When awarding attorneys fees the court must consider all of the factors and not seize on one to the exclusion of others. (Citations and internal quotation marks omitted.)
Rodriguez, supra, 202 quoting Schoonmaker supra, 265 Conn. at 259.
We have 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 have also 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' (Emphasis in original.) (citations omitted).
Smith v. Snyder, 267 Conn. 456, 471 (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 . . . The courts may then adjust this lodestar calculation by other factors . . . For guidance in adjusting attorneys fees, Connecticut courts have adopted the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). The Johnson factors are (1) the time and labor required, (2) the novelty and difficulty of the questions, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee for similar work in the community, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation and ability of the attorneys, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Id.; see also Krack v. Action Motors Corp., supra, 87 Conn.App. 695; Rules of Professional Conduct 1.5 (Citations and internal quotation marks omitted.)
The list of factors [the Johnson factors] is not . . . exclusive. The court may assess the reasonableness of the fees requested using any number of factors . . .
Ernst v. Deere Co., 92 Conn.App. 575, 576 and n. 5 (2005).
Similarly, a contract clause providing for reimbursement of incurred fees permits 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.
N.E. Leasing v. Paoletta, 89 Conn.App. 766, 778 (2005), quoting from CT Page 5319 Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 246 (1982).
In applying the foregoing principles the court will start with a calculation of a "lodestar fee" and then subject that fee to an analysis of the twelve so-called "Johnson factors" of reasonableness, and other claimed deductions sought by the defendants.
The starting point in computing the lodestar fee is $150,838, which is the requested hourly fee of $156,612.66 itemized in detail in the fee affidavit and attached invoices, less the following deduction which the defendants have identified. This action was commenced by summons and complaint dated August 11, 2004 with a return date of September 28, 2004. The first seven invoices attached to the fee affidavit (Invoices dated 9/10/03, 10/13/03, 11/1/03, 12/8/03, 1/14/04, 4/8/04, and 8/9/04 relate exclusively to legal services performed in the prosecution of the underlying debt litigation between Sotavento Corporation and Morningside Partners Limited Partnership (including at least one reference to working on a fee application to be submitted to Judge Nadeau in that case). These efforts are not properly charged to this case against the limited partners. The total fees billed in those seven invoices come to a total of $5,774.66 representing 34.7 hours, which amount has been deducted by the court to arrive at the total hourly fee of $150,838 representing 603 billable hours.
The lodestar fee is defined as the number of hours reasonably expended on the litigation times a reasonable hourly rate. Ernst, supra. Defendants' primary argument in opposition to this petition in that the 603 billable hours claimed (after the court's deduction of 34.7 hours) is grossly excessive for prosecuting this action. For example, defendant Leventhal claims that the plaintiff could have and should have served and filed just the three-paragraph form complaint from the Practice Book Annotated for "action on a judgment," and that ". . . any fees awarded should be based on the minimal amount of work that this action required: to ascertain the defendants' assets and execute on them, notwithstanding that this information could have easily been ascertained by an Examination of Judgment Debtor." (Leventhal memorandum, 6-7.) This is a gross oversimplification. Although these limited partners were parties to the underlying debt action, the judgment did not enter against them. It entered only against the limited partnership. Had the plaintiff simply attempted to discover and execute on the limited partner-defendants' property to satisfy that judgment, those efforts would have been met with a barrage of defenses centering on a claim that the defendants were not general partners and therefore not individually liable for partnership obligations. The proceedings would have evolved into litigation over the very same issues that were ultimately tried in this action. The plaintiff was entirely within its rights in proceeding on its complaint as it did in this case:
The reason for this is not entirely clear. It could have been that the limited partners were defendants in that action for the purpose of the plaintiff's unsuccessful attempt to attach or garnish sales proceeds believed to be in their hands or that they were permitted to intervene derivatively on behalf of the limited partnership to assert a defense without any affirmative claim made against them personally by the plaintiff.
. . . [I]n an action against a partnership, in which only the partnership is named as a defendant and the result is a judgment against the partnership, a plaintiff cannot attach the individual property of the partners or levy upon their individual property. This does not prevent a plaintiff when it finds the partnership without assets from instituting suit against the individual partners to hold them liable for that debt.
Dayco Corporation v. Fred T. Roberts Co., 192 Conn. 497.
In assessing the reasonableness of counsel's efforts on behalf of the plaintiff, one must look at the situation through the prism of the eight years of litigation preceding this action just to establish the validity of the obligation of the unpaid balance due on plaintiffs' promissory note, encompassing three actions in the Superior Court and two appeals to the Appellate Court. That background is detailed at page 2 of this court's Memorandum of Decision on Trial of the Case, and summarized by the Appellate Court in its decision affirming the denial of defendant Leventhal's motion for summary judgment in this action. 102 Conn.App. 828, 829-31 (2007). To the extent that plaintiff's counsel may have spent some extra time planning its strategy or drafting its pleadings or preparing for trial in this action, this court would be hard-pressed to say, in the light of that background, that there was any wholesale expenditure of unnecessary time and effort. In N.E. Leasing, LLC v. Paoletta, Trustee, 89 Conn.App. 766 (2005), the court affirmed an award of $119,000 in attorneys fees for the plaintiff in a foreclosure case. The defendant suggested that the sum of $3,000 was more in keeping with attorneys fees ordinarily allowed in foreclosure actions. In affirming the $119,000 fee the court noted the protracted litigation and several bankruptcy filings to forestall the ultimate foreclosure and relied on the trial court's finding that "What began as a relatively routine foreclosure action evolved into a protracted, acrimonious and inexcusably lengthy and costly series of lawsuits and legal proceedings." Id. at 768. Although this case did not evolve along that same path, the concept of measuring the reasonableness of a plaintiff's counsel's work in the context of the vigor of the defense is appropriate here.
The court rejects the defendants' general claim that plaintiff's counsel grossly overworked this case in virtually every respect.
The defendants have also made some specific claims of time entries by plaintiff's counsel which they claim to be excessive. The court has reviewed all those specific claims, and finds that the following reductions are appropriate: (1) Atty. Peloso's time on March 28, April 11, and April 12, 2006 in preparing for oral argument on the motion for summary judgment (cumulative time something more than 4.1 hours) after he had researched and prepared the brief in opposition to that motion is reduced by two hours at $340 per hours or a reduction of $680; and (2) Atty. Peloso's time on March 14, 16, and 17, 2008 in preparing for argument in opposition to defendants' motion to add special defenses (cumulative time something more than 7.3 hours) is reduced by three hours at $340 per hour or a reduction of $1,020. In all other respects the challenged time entries are found to be reasonable. The lodestar fee is therefore found to be $149,138 which is $150,838 less reductions of $680 and $1,020.
Starting with that lodestar, the court will next consider the Johnson factors and other indicia of claimed unreasonableness argued by the defendants.
Novelty and Difficulty of the Questions.
Despite defendants' efforts to portray this case as a simple collection action, the case involved novel and complex issues of partnership law going to the interrelationship and priority among various provisions of Connecticut's Uniform Limited Partnership Act, Revised Uniform Limited Partnership Act, Uniform Partnership Act and the limited partnership agreement of Morningside Partners Limited Partnership. It also involved a detailed factual review and analysis in the framework of those legal issues of proceedings over a span of several months in a receivership ordered by this court in 1996 at the request of one of the defendants herein which resulted in a court-ordered receiver's sale of the only asset of the limited partnership and the distribution of the sales proceeds among the parties hereto and others. This case also involved the discovery by the plaintiffs of an undisclosed and unauthorized $47,704.34 side deal transaction between the limited partners (including the defendants herein) and the purchaser of the property which the defendants even eleven years later at the trial of this case attempted without success to justify as somehow related to a tax miscalculation or a rent adjustment between the buyer and seller. That transaction was key to the court's conclusion that the defendants had lost their limited liability status under the provisions of the agreement of limited partnership.
Since these are uniform acts, the parties cited and relied upon — in addition to many Connecticut decisions — cases from state and federal courts applying or construing those same provisions as enacted in other states including Arizona, New Jersey, Delaware, and Pennsylvania, as well as treatises on partnership law.
The case involved five parties, represented by three different law firms. It was pending for three years before trial. The Judicial Branch computerized docket sheet consists of seven pages and 234 docket entries. There was a contested motion to strike, contested request to revise, and a contested motion for summary judgment (the denial of which was the subject of an interlocutory appeal to the Appellate Court which resulted in affirmance of the denial of the motion. Sotavento Corporation v. Coastal Pallet Corp., 102 Conn.App. 828 (2007)). The defendants between them pleaded nineteen special defenses. The trial only took two days, but they were full days without the delays normally associated with jury management. The trial transcript consists of 302 pages. Four witnesses testified. There were 73 full exhibits admitted into evidence. Each party submitted a post-trial memorandum, and a reply memorandum and then a supplemental trial memorandum addressing certain points identified by the court. Post-trial memoranda cumulatively came to more than 100 pages plus exhibits and attachments. There was a post-trial defense motion to amend by adding new special defenses, and a post-judgment motion to correct and motions to reargue filed by all parties.
The court makes no deductions from the lodestar fee on the ground that this was a simple collection case or that it lacked complexity.
The Skill Requisite to Perform the Legal Services Properly
The court has reviewed the qualifications and experience of Attorneys O'Hanlan, Peloso, Donlon, Keller, Talbot, and Hovanee as summarized in Para. 8 of the O'Hanlan affidavit. The court finds that each is well qualified by education, credentials, and experience for the role played in the representation of Sotavento Corporation in this matter, and no deduction is made because of this factor.
Defendant Leventhal argues that plaintiff's attorneys lacked experience in the field of debt collection:
Indeed it is alarmingly striking to note that in none of the documents submitted by the plaintiff in support of its claim for attorneys fees does one find that any of the firm's high priced lawyers had expertise in debt collection, or any discussion of the options available to the plaintiff to collect its debt, or any discussion of the different types of fee arrangements that most debt collection firms and attorneys offer their clients (i.e. hourly, contingency, set fee or a combination thereof).
Leventhal Memorandum, p. 5.
The court is not persuaded by this argument. This was simply not the typical collection action handled by firms specializing in that area of the law on various fee arrangements. As previously discussed this case involved complex issues of responsibility for partnership obligations under the Uniform Partnership Act, the Uniform Limited Partnership Act, and the Revised Uniform Limited Partnership Act. The defendants went to trial on a combined nineteen special defenses, and moved to add two additional special defenses post-trial. Any lack of skill or experience as "debt collectors" was not a cause of the fees charged to the plaintiff being excessive. No deduction from the lodestar fee is made because of the experience of counsel factor.
The Preclusion of Other Employment by the Attorney Due to Acceptance of the Case.
In a large firm it seems to the court that this would rarely if ever be a factor. There is no evidence that it was a factor here. Counsel has not suggested that they charged a higher fee for this reason and the court sees no reason to make any deduction form the lodestar fee because of this factor.
The Customary Fee for Similar Work in the Community
The Coastal Pallet defendants argue initially that the "community" or "locality" in which to measure the reasonableness of the fees requested should be Bridgeport and not Stamford because this case was originally brought in Judicial District of Fairfield at Bridgeport, and was later transferred to Stamford after the plaintiff's application for the complex litigation docket was granted. (There is no complex litigation docket at Bridgeport.) This argument is unpersuasive. The general rule is that a court adjudicating a claim for an award of attorneys fees will consider the prevailing rate in the district in which the court sits. Polk v. New York State Department of Correction, 722 F.2d 23 (2 Cir. 1983), cited by Judge Moraghan in Carr v. Town of Bridgewater, Docket No. CV86-004633S, Superior Court, Judicial District of Litchfield (April 9, 1991), 1991 Ct.Sup. 3171 [ 3 Conn. L. Rptr. 466]. There is no evidence that Robinson Cole which is a statewide firm has a separate fee schedule for cases tried in Bridgeport as compared to cases tried in Stamford. In fact defendants presented no evidence at all as to any difference in legal fees customarily charged by trial attorneys being different in Bridgeport from what they are in Stamford. The record shows that this case was commenced by counsel from the Stamford office of Robinson Cole and handled by them at all times while the case was pending in Bridgeport and later in Stamford. In all likelihood those same attorneys would have tried the case had the trial been held in Bridgeport and would in all likelihood have charged the same fees as are presently claimed for trying the case in Stamford except that there would have been substantial additional hours expended for travel time.
The court finds that the hourly rates charged to the plaintiff are not out of range of the customary fees charged by experienced trial counsel trying cases on the complex litigation docket. The average hourly rate of $245.55 charged to the plaintiff for all attorneys working on the case over the duration of this representation is only slightly higher than the $225 per hour customarily allowed on the Stamford foreclosure short calendar for attorneys appointed as committees to conduct foreclosure sales. The defendants seem to question primarily the hourly rate charged by the trial counsel, John Peloso, Esq. Atty Peloso took over primary responsibility for trial preparation and trial of this case when the "relationship partner" Atty O'Hanlan had a trial commitment time conflict. Atty Peloso's first billing on this matter occurred on the invoice of December 10, 2004 where he put in 5.4 hours at the nominal rate of $300 per hour but did not charge any fee for two separate office conferences of 0.3 hours each. From the court's review of the invoices his billing rates thereafter were $320 in 2005, $340 in 2006, $380 in 2007; $390 in 2008, and $400 in 2009. His final time entry appears on the invoice of February 17, 2009 for his review of the Coastal Pallet defendants' motion to reargue, for which he billed 0.4 hours at $400 per hour. Defendants claim that the increase in Atty Peloso's hourly rate (which they calculate at a 33% increase over a five-year span) was excessive. The court does not agree, especially since those hourly rates are Atty. Peloso's nominal rates, which do not account for the "No Charge" time entries, which, when factored in, reduced his effective average billing rate. The Coastal Pallet defendants have taken the position that Peloso's rate "should be calculated either at his average hourly rate for all the work he billed, or at a reasonable rate of $300 per hour." (Coastal Pallet Memorandum, p. 12.) They calculate Atty Peloso's average hourly rate as $295.95 per hour, and ask the court to apply that rate to all the time billed by Atty. Peloso over the full five years, which, they claim, results in a fee reduction of $16,435.72. The court sees no valid rationale to compelling any attorney to bill all his hours at exactly his average rate over a number of years. Depending on where his hours are most concentrated, that could result in a fee increase or, as here, a fee reduction.
The issue before the court is the reasonableness of the legal fees charged to the plaintiff by Robinson Cole which includes necessarily Atty. Peloso's component. The court has gone through the invoices for each and every month Atty. Peloso worked on this case, and has calculated that he worked a total of 322.4 hours for which his firm billed Sotavento Corp. $111,850 or an average effective billing rate of $346.93 per hour, which takes into effect all his "No Charge" hours as well as the hours he billed. The court finds that $346.93 per hour on the average for handling litigation of this complexity and intensity over a five-year period, by a litigator of some twenty years' experience is a reasonable rate. See, Mariculture v. Under-Lloyds of London, No CV98-1063762S, Superior Court, Judicial District of Stamford/ Norwalk at Stamford (June 4, 2002, Tierney, J.) 2002 Ct.Sup. 7136 (rate of $375 per hour approved in 2002 for Stamford commercial litigator with 24 years' experience); Heussner v. Heussner, No. CV05-4011532S, Superior Court, Judicial District of Fairfield at Bridgeport (June 26, 2007, Matasavage, J.) 2007 Ct.Sup. 11333 ($375 per hour approved for experienced litigator in appeal from probate); Glazer v. Dress Barn, Inc., No. X92CV00-0169075S, Superior Court, Complex Litigation Docket at Waterbury (July 7, 2003, Schuman, J.) 2003 Ct.Sup 8546 ("the court finds that $400 is a reasonable billing rate for Attorneys Stamell and Schrager"); Patino v. Birken Mfg. Co., No. CV05-4016120, Superior Court, Judicial district of Hartford at Hartford (August 6, 2009, Prescott, J.) 2009 St.Sup. 13253 ("The court finds the customary fee in the local area to be approximately $350 per hour for the work of a civil rights attorney with experience [since 1982]"); and Gray v. Foundation Health Systems, No. X06CV99-0158549, Superior Court, Complex Litigation Docket at Waterbury (April 21, 2004, Alander, J.) 2004 Ct.Sup. 5538 (court approved $119,685 fee for class counsel calculated at rates ranging from $185 to $400 per hour, enhanced by a multiple of approximately 1.7 because of the complexity and difficulty of the case).
The court makes no deduction from the lodestar fee because of the hourly rates charged. They do not exceed the rates customarily charged for litigation services in Connecticut.
Whether the Fee is Fixed or Contingent
The fee arrangement between the plaintiff and Robinson and Cole was neither a fixed (i.e. flat rate) nor a contingent fee. It was a fee based on the firm's established hourly rate for each attorney or paralegal working on the file applied to the hours actually worked each month, plus costs and disbursements incurred. The court finds that this is the customary and prevailing billing arrangement for handling commercial litigation matters in Connecticut. There is nothing unreasonable about such an arrangement, and no deduction from the lodestar fee is made because of this factor.
Time Limitations Imposed by the Client or the Circumstances
There is no evidence of any time limits imposed on counsel by Sotavento Corp. or the circumstances of the case, which has now been pending in this court and the Appellate Court for more than five years. This factor plays no role in the court's ruling on the motion for an award of fees and costs.
The Amount Involved and the Results Obtained
Characterizing the plaintiff's legal fees as "outrageous" (Coastal Pallet memorandum, p. 7) and "quite grotesque" (Leventhal memorandum, p. 3), the defendants argue that the requested fee should be substantially reduced because of the amount involved. They point out correctly that the fee request in this case ($156,612.66 before any deductions) is nearly as high as the amount of Judge Nadeau's final $163,838.20 judgment in the underlying debt action against the limited partnership (which plaintiffs seek to enforce by this action) and almost double the amount of the final judgment this court has entered against the limited partner defendants in this case. ($87,780.78 as modified on December 21, 2009). They cite F.H. Krear Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1264 (2 Cir. 1987) where the court stated:
New York Courts have stated that, as a general rule, they will rarely find reasonable an award to a plaintiff that exceeds the amount involved in the litigation. See Colon v. Automatic Retailers Association, Inc., 74 Misc.2d 478, 486, 343 N.Y.S.2d 874 (Civ. Ct 1972) (award of fees in excess of the amount involved in a litigation would normally appear to be unreasonable.
Connecticut courts have not adopted or followed the New York rule.
The defendants also urge us to hold that the award [of counsel fees] was unreasonable because it exceeded the amount of compensatory damages that the plaintiff recovered. The trial court ordered the defendants to pay $42,294.75 in attorneys fees, while holding the defendants liable for only $18,120.09 in compensatory damages. This difference by itself, however, does not compel us to disturb the trial court's judgment.
Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 195 (1986).
There is also confirmation in the background of the litigation between these parties that the New York rule is not applicable here. In entering final judgment following appeal in the underlying debt action (No. CV96-0338583S, Sotavento Corporation v. Morningside Partners Limited Partnership, et als) Judge Nadeau entered final judgment awarding damages of $49,176.08 plus $29,942.97 in prejudgment interest and $285.35 in costs. The award of attorneys fees to the plaintiff was $86,433.80 which exceeded the damages, interest and costs combined. See, also, LaMontagne v. Musano, Inc., 61 Conn.App. 60 (2000) where the Appellate Court affirmed as reasonable an award of counsel fees in the amount of $3,500 when the judgment awarded was $2,800; Sweet v. Freund, Docket No. CV00-0503773, Superior Court, Judicial district of New Britain (May 30, 2001, Weise, J.) 2001 Conn.Sup. 7062 (Appeal from award of counsel fees by the Commissioner of Labor dismissed when the commissioner had awarded the claimant $3,251.62 in damages and $7,843.30 in attorneys fees); and Gray v. Foundation Health Systems, Inc., supra, (Legal fees of $280,000 awarded to class counsel who settled the case for $140,000). The rationale of not being limited to the amount involved when awarding attorneys fees would be consistent with the Appellate Court's reminder in Rodriquez, supra, that "[w]hen awarding attorneys fees the court must consider all of the factors and not seize on one to the exclusion of others." In comparing the attorneys fee award sought by the plaintiff in this case to the "amount involved" it must also be recalled that the amount involved at the start of trial was not only the $163,838.20 judgment in the underlying case as entered on April 25, 2004. By the time the trial of this case commenced statutory post-judgment interest had been accumulating on that amount at the rate of 10% per annum for about three and one-half years.
Defendants also challenge the requested attorneys fees as not justified by the "results obtained." This refers to the court's judgment upholding the defendant's special defense of waiver of the right to charge the defendants with individual liability to the extent of the $102,296.66 distribution of sales proceeds to the limited partners as stipulated and ordered by Judge Grogins on November 14, 1996 in the Standish receivership action. The plaintiff prevailed on one of its two theories of individual partnership liability pleaded in its one-count complaint. It also prevailed on four of the five special defenses which were actually advanced at trial. But the plaintiff failed to prevail on this one major component of the case which substantially limited its award of damages. In terms of attorney's efforts, however, the evidence of waiver was so closely intertwined with the evidence of loss of limited liability by violation of the limited partnership agreement, that it would be impossible for the court to allocate any specific number of hours to one issue or the others Counsel fees are not necessarily subject to reduction when some of the claims of the plaintiff fail to succeed, especially when multiple claims are made in pursuit of the same goal. Russell v. Dean Witter Reynolds, Inc., supra, (Fee awarded to plaintiff's counsel not reduced by two-fifths when plaintiff prevailed on three of five claims ". . . [b]ecause the amounts he expended on litigation including the dollars spent on his unsuccessful claims, were devoted to the pursuit of a goal that he achieved." Id., 195). There is also a public policy aspect supporting awards of counsel fees as authorized by remedial statutes. But in this case the counsel fees are sought pursuant to the provisions of a private contract. There is no public policy aspect and the plaintiff did not totally achieve the goal common to its theories of liability. In situations such as this, trial courts have made the appropriate adjustment on a percentage or fractional basis based on the court's best judgment having heard all the evidence. In this case the court has concluded that a reduction of one-third of the resulting lodestar fee after applying previous reductions ordered by the court reasonably accounts for the plaintiff's failure to prevail on the special defense of waiver.
In Russell v. Dean Witter Reynolds, supra, counsel fees were awarded pursuant to the Connecticut Uniform Securities Act (CUSA). The court said, "Indeed the relative size of the award in this case tends to support the proposition that the recovery of attorneys fees is necessary to make the enforcement of CUSA economically feasible." 200 Conn. at 196.
See, e.g. Weinshel v. Willott, LLC, Docket No. CV03-0405088, Superior Court, Judicial District of Fairfield at Bridgeport (November 9, 2006, Arnold, J.) 2006 Ct.Sup. 20856, where the court awarded punitive damages equal to attorneys fees of $5,000 where compensatory damages allowed (after remittitur) came to $1,149.50. The total reasonable attorneys fees expended were found to be $23,323 which were reduced by the court partly on the ratio of counts of the complaint on which the plaintiff prevailed and further reduced by the court's analysis of the factors enumerated in Rule 1.5(a) of the Rules of Professional Conduct [which are the same as the Johnson factors]. See, also, Judge Nadeau's decision in the underlying debt action, Sotavento Corporation v. Morningside Partners Limited Partnership, No. CV96-00338583S, Superior Court, Judicial District of Fairfield at Bridgeport, (April 4, 2002), 2002 Ct.Sup. 4174, 31 CLR 711, where the court reduced the award of attorneys fees to be exactly proportional to the ratio of success of damages claimed to damages won. In this case, the complaint was drawn in only one count, so the Weinshel approach is unworkable. One could apportion on the basis that of the nineteen special defenses filed, defendants prevailed on only the two waiver defenses, or 11%, leaving the plaintiff 89% successful, but that approach is strained and artificial. Judge Nadeau's "ratio of success" approach in this case would result of a fee award of approximately 38% of the $156,612.66 total attorneys fees expended, or about $59,512.81. The court does not consider that amount as fair and reasonable compensation for the effort that went into plaintiff's partial victory achieved in this case. Judge Nadeau did not preside over a trial of the underlying case, but rather entered judgment at a hearing in damages following the entry of summary judgment for the plaintiff Sotavento Corporation as to liability only. He recognized that ". . . a proportional fee leaves unexamined the possibility that more or less time was expended on successful or unsuccessful aspects of plaintiff's claim. Neither side has vied for the truly grisly, daunting, and likely impossible task of such a sorting, thus one is left to the proportioning done above." This case been assigned to me exclusively on the complex litigation docket since the start of the September 2006 term including some of the pretrial motions, presiding over a lengthy bench trial and writing a memorandum of decision and handling all post-judgment proceedings. Although not purporting to able to do the sorting with surgical precision, this court, drawing on my comprehensive knowledge of the case and my experience of many years as a practicing lawyer and more than six years on the bench feels comfortable in assigning a one-third ratio to the waiver issue.
The Experience, Reputation, and Ability of the Attorneys
No deduction is appropriate on this factor. All counsel for the plaintiff have the experience, reputation, and ability, as summarized in Atty. O'Hanlan's affidavit, to perform their individual roles in the representation of the plaintiff in this case and to bill at the hourly rates set forth in the invoices attached to that affidavit.
The Undesirability of the Case
This factor plays no role in the determination of the award of attorneys fees in this case. Although the case has been vigorously contested at each stage of the proceedings, it was commercial litigation prosecuted and defended by competent counsel making every argument available to protect or advance the client's position. From the court's perspective the relationship among counsel has been professional. There has been no indication to the court of anything that would make this case "undesirable" to a hard working aggressive commercial litigator.
The Nature and Length of the Professional Relationship with the Client
The defendants have been represented by their present counsel since litigation between the parties commenced in 1996. Plaintiff has been represented by Robinson Cole in these matters since January 2002. Each counsel therefore has a long-term client relationship with the parties represented herein. That relationship on the plaintiff's side, with the plaintiff having paid all invoices submitted to it by counsel, undoubtedly played a role in the courtesy discounts shown on many of the monthly invoices, in the form of time logged but not charged by all attorneys especially Atty. O'Hanlan who characterizes these writeoffs in his affidavit at ¶ 18 as ". . . done principally as a courtesy to a valued client facing obdurate adversaries . . ." The attorney-client relationship has therefore already been reflected in the lodestar fee.
Awards in Similar cases
The court has researched awards made in similar cases, many of which are cited above. The fees claimed are not excessive as compared to fees awarded in other similar cases.
Comparison to Defendants' Counsel Fees
Defendants contrast the plaintiff's $156,612.66 request for attorneys fees to their own legal expenses in defending this lawsuit which are represented to be $28,157.52 for the Coastal Pallet defendants and $30,000 for Mr. Leventhal which combine at $58,157.52. (Coastal Pallet Memorandum, p. 7.) The court cannot give weight to this argument for two reasons. First of all the revolving credit agreement and promissory note entitle the plaintiff (not the defendant) to its reasonable counsel fees. The law of Connecticut supports the lodestar or hourly fee as the method of calculating and reviewing those fees, and the court, with certain adjustments, has found those fees to be reasonable. What the defendants paid to their attorneys and the reasonableness of those fees is not before the court. The plaintiff had the overall burden of proving this case and was the party seeking to change the status quo which had existed since the transaction of 1996. Secondly, the plaintiff's counsel as required by the rule of Smith v. Snyder, supra, has submitted under oath meticulous documentation of legal fees charged to the plaintiff including each and every time entry by each billing professional over a five-year period. The defendants have submitted in two sentences in their brief an unsworn representation of counsel of the fees paid by the defendants "to date." It is not even represented that these are the full and final fees incurred. There is no indication of the fee basis. At least in the case of Mr. Leventhal the $30,000 fee has the hallmarks of being perhaps a retainer or a flat rate fee negotiated with the client. In each case there may be future billings to the client for services not compensated by the amounts represented. It would be grossly unfair under these circumstances for the court to consider the representations made as to defendants' legal expenses and the court declines the invitation to do so.
Plaintiff's Retention Letter
Plaintiff's counsel at the request of the court has submitted its retention letter agreement with Sotavento Corporation. The letter is dated January 23, 2002 on Robinson Cole letterhead, signed by Edward V. O'Hanlan, Esq. on behalf of Robinson Cole and by Samuel L. Braunstein as president of Sotavento Corp. It applies to defense of Sotavento Corporation "in the two cases now pending in the Superior Court" which refers to two earlier actions brought against Sotavento Corporation by Peter G. Standish derivatively on behalf of Morningside Partners Limited Partnership to contest the validity or enforceability of the promissory note and revolving credit agreement between Sotavento and the limited partnership, and specifies that legal services shall be rendered by Robinson and Cole and compensated by Sotavento Corporation on an hourly basis plus reimbursement of out-of-pocket disbursements, with monthly billings. The 2002 hourly rates are listed with the admonition the hourly rates are reviewed annually each January "and may change at that time." The 2002 letter as originally drafted and signed did not apply to this action commenced in 2004, but the letter has been submitted as the retention agreement which governed Robinson Cole's representation of Sotavento Corporation as plaintiff in this action.
The Coastal Pallet defendants by supplemental memorandum argue that there is in effect no written fee agreement between Sotavento Corporation and Robinson Cole that applies to services rendered in prosecuting this action, and — presumably — that this fee petition should be denied because of that omission.
First of all, the lack of a written letter of representation would be a matter of ethical concern between lawyer and client and would not inure to the benefit of the adversary parties in the case. Robinson and Cole brought this case in 2004, appeared for Sotavento as plaintiff and handled the case for five years through to judgment. These is no issue but that legal services were performed, monthly bills were submitted to Sotavento Corporation and paid by Sotavento without complaining about or raising the lack of a letter of representation and without filing a grievance against Robinson Cole for violating Rule 1.5 of the Rules of Professional Conduct. "They [the Rules of Professional Conduct] are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons." (Practice Book, Scope of the Rules of Professional Conduct.)
Rule 1.5 of the Rules of Professional Conduct provides in relevant part: "(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses . . . (b) The scope of the representation, the basis of the rate or fee and expenses for which the client will be responsible, shall be communicated to the client in writing before or within a reasonable time after commencing the representation . . ."
Secondly, although this action by Sotavento is not expressly mentioned in the letter services rendered in prosecuting this action are covered by implication under the language of the letter which says "We have agreed that our engagement in this matter does not involve an undertaking to represent the company in other matters, except as expressly agreed." Robinson Cole's commencement and prosecution of this action for five years without a separate letter agreement and Sotavento Corporation's direct involvement in the case and payment of dozens of monthly statements for legal services rendered indicate an implied agreement for representation in this matter involving the same adversaries and the same basic facts as the two lawsuits expressly mentioned in the letter, an implied extension of the fee basis specified in the letter to prosecution of this action, and an implied mutual waiver of the letter's requirement for an "express agreement."
Finally, the legal fees charged to Sotavento and paid to Robinson Cole for prosecuting this action are covered by the exception to Rule 1.5's requirement of a written fee agreement. The exception is stated in Rule 1.5(b) immediately following the language quoted in footnote 13 and says that a written fee agreement is required ". . . except when the lawyer will charge a regularly represented client on the same basis or rate." Since Robinson and Cole has represented Sotavento Corporation since January 23, 2002 not only in the two earlier Standish actions, but also in the underlying debt action by Sotavento against the limited partnership which resulted in the judgment which is the basis for this action, and the appeals of those actions, there is no doubt but that Sotavento Corporation had become a "regularly represented client" of Robinson and Cole when this action was commenced, and this action was prosecuted on the same hourly fee basis as set forth in the January 23, 2002 fee letter. The exception therefore applies.
For all these reasons the court takes no deduction from the lodestar fee because of the lack of a written fee agreement expressly applicable to this action.
Responsibility for Counsel Fees on Appeal
The Coastal Pallet defendants argue that they should not be responsible for plaintiff's attorneys fees incurred in opposing the interlocutory appeal filed by co-defendant Marvin R. Leventhal from the denial of his motion for summary judgment on the special defense of res judicata, which fees are calculated by the Coastal Pallet defendants to be $9,526.00. Both the Coastal Pallet defendants and defendant Leventhal had filed special defenses of res judicata, claiming that this action was barred because the claims in this action could have been made and should have been made in the underlying action by the plaintiff against Morningside Limited Partners Limited Partnership, et als. for nonpayment of the revolving credit agreement and the promissory note. The Coastal Pallet defendants and Leventhal each moved for summary judgment on the res judicata special defense (Nos. 134 and 136) which motions were denied by Judge Adams on April 12, 2006 with articulation filed on September 11, 2006 (No. 149.01). Defendant Leventhal appealed that ruling. The Coastal Pallet Defendants did not appeal. The denial of the Leventhal motion for summary judgment was affirmed in an opinion handed down on July 31, 2007 Sotavento Corporation v. Coastal Pallet Corp., supra where the Appellate Court said: ". . . the judgment in Sotavento I [the underlying debt action] did not address whether the defendants breached the partnership agreement or whether they had acted as de facto general partners subjecting them to personal liability . . . We conclude therefore, that the claims asserted in Sotavento II [this action] were not litigated, nor could they have been litigated in Sotavento I." Id., 102 Conn.App. at 836-37. Although the Coastal Pallet defendants were not parties to the appeal the Appellate Court took note of the Coastal Pallet defendants by name Id., note 1, and used the plural when referring to the appellant. (e.g., in the above quote, "whether the defendants breached the partnership agreement" and "whether they had acted as defacto general partners"). The Coastal Pallet defendants clearly "rode along" on the Leventhal appeal. If Mr. Leventhal had been successful and the Appellate Court had ruled that the claims in this action were barred by res judicata, the ruling clearly would have applied to the special defense of res judicata filed by the Coastal Pallet defendants as well, and they would have been entitled to summary judgment on their special defense of res judicata (which was not withdrawn at any time) under the doctrine of appellate law of the case. The plaintiff was compelled to defend against the appeal, and prevail, in order to obtain judgment against any defendant. Under these circumstances the court does not find it inequitable or contrary to the ends of substantial justice to spread the burden of paying plaintiff's attorneys fees on appeal among all defendants.
Although the denial of a motion for summary judgment ordinarily is not appealable because it is not a final judgment, the denial of a motion for summary judgment on the basis of a claim of res judicata is a final judgment for purposes of appeal because it invokes the right not to go to trial on the merits. Sotavento Corporation v. Coastal Pallet Corp., supra, 102 Conn.App. at 837, n. 2.
Unlike the rulings of another judge of the Superior Court in the same case where the doctrine of the law of the case is "not one of unbending rigor," Stevens v. Hartford Accident Indemnity Co., 39 Conn.App. 429, 437 (1995) the ruling of an appellate court on an appeal becomes the binding law of the case on remand. Suffield Bank v. Berman, 228 Conn. 766, 775-6 (1994).
Conclusion Re Award of Attorneys Fees
The court therefore concludes that the plaintiff is entitled to an award of the attorneys fees being the lodestar amount of $149,138 less a one-third reduction (minus $49,712.67), or an award of attorneys fees in the amount of $99,425.33.
Costs and Expenses
The attachment to the O'Hanlan affidavit shows $7,857.73 in disbursements between September 12, 2003 and August 25, 2009. The plaintiffs have voluntarily reduced this number by eliminating $744.37 spent for "convenience" expenses such as overnight delivery, messengers, etc. The plaintiff's claim for reimbursement is therefore $7,113.36. The court further reduces this amount by $103.91 representing expenses incurred prior to the commencement of this action which related to the underlying debt action. The Coastal Pallet defendants have objected to a $309.09 "Marshal's fee for prejudgment remedy" as unnecessary service of a PJR application filed in a pending action. This disbursement is also deducted from the amount claimed. See Conn. Gen. Stat. § 52-278m.
The Court therefore awards $6,700.36 for costs and expenses, without reduction for the amount recovered, since the court's review of the claimed expenses leads to the conclusion that these expenses would have been incurred even if the plaintiff had sued only for the amount ultimately recovered.
ORDER
Plaintiff's Motion for a Award of Attorneys Fees and Costs Post-Trial is granted to this extent: Plaintiff is awarded Attorneys fees of $99,425.33 and costs and expenses of $6,700.36. Total award is $106,125.69 as against all defendants.