50 DAYS STREET ASSOCIATES LIMITED PARTNERSHIP v. NORWALK HOUSING AUTHORITY.

2006 Ct. Sup. 11533
No. X08 CV 02 0191396 SConnecticut Superior Court Judicial District of Stamford-Norwalk Complex Litigation Docket at Stamford
June 21, 2006

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE PLAINTIFF’S REQUEST FOR ATTORNEYS FEES
TAGGART D. ADAMS, JUDGE.

I. Background
The plaintiff 50 Day Street pursued an action against the defendant Norwalk Housing Authority (NHA) alleging that oil pollution emanating from a leaking underground storage tank on NHA’s property had contaminated the neighboring premises of 50 Day Street. The plaintiff’s operative complaint set forth six causes of actions: (1) reimbursement for cleanup of pollution caused by another person in accordance with General Statutes §22a-452, (2) negligence, (3) negligence per se, (4) nuisance, (5) trespass and (6) a violation of General Statutes 22a-16 et seq. Following a bench trial, this court issued a memorandum of decision determining that 50 Day Street had failed to prove that contamination from NHA’s leaking tank had caused pollution or damage to 50 Day Street’s property. The court also found that NHA had violated General Statutes § 22a-16, and 50 Day Street was entitled to injunctive relief and reimbursement of some fees and costs. See Memorandum of Decision, May 17, 2005 (decision following trial) and Memorandum of Decision, January 23, 2006 (re-argument denied; motions to open judgment and reopen evidence denied).

Specifically, this court found, after trial, that NHA’s leaking underground tank had unreasonably polluted the NHA property and that while 50 Day Street had been unsuccessful in its claims to have NHA compensate it for remediating the pollution on 50 Day Street property, the efforts of 50 Day Street had been instrumental in discovering and delineating the scope and cause of the contamination on the NHA property and therefore it was entitled to reimbursement of some of its litigation fees and costs. The question before the court is the extent of that CT Page 11534 entitlement.

II. Discussion
General Statutes § 22a-18(e)a provides that the court may award to a party, who obtains equitable relief in an action under Section 22a-16, its costs including reasonable costs for witnesses and reasonable attorneys fees. 50 Day Street has submitted an application seeking $477,495.53 in attorneys fees, $27,222.56 in costs and $122,417.46 in witness fees. The affidavit of Attorney Joseph Williams included copies of billing statements rendered by the plaintiff’s attorneys and environmental consultants. Attorney Williams notes that the requested attorneys fees have been reduced through elimination of some supervisory time, fees related to 50 Day Street’s claim for diminution in property value, its claim for a jury trial, claims for remediation damages and claims not pursued at trial. These reductions, along with a discount given to the plaintiff, amounted to over $92,000. According to Attorney Williams the remaining fees, expenses and witness costs being claimed were “inextricably intertwined” with 50 Day Street’s Section 22a-16
claim. There was also an affidavit of Gary Cluen, a principal of the environmental consulting firm, GZA Geo Environmental, Inc., providing information on costs billed to 50 Day Street by GZA. Mr. Cluen testified as an expert for 50 Day Street. The GZA costs were not reduced in any fashion except that costs for work done in connection with a site further away from the NHA property were not included.

NHA opposes the fee application specifically noting that it includes fees charged in connection with the prosecution of five counts which 50 Day Street failed to prove. It also points out that the Section 22a-16 claim was not added to the complaint until a few days before the trial and after two years of litigation costs had been expended. The parties and the court agree that the single count of the complaint seeking relief pursuant to General Statutes § 22a-16 is the sole basis for an award of fees and costs in this case. While the plaintiff was successful on its Section 22a-16 claim, it was unsuccessful on the claims which sought money damages by proving that the contamination on NHA property had migrated to its property, and it was these latter claims which engendered by far the largest amount of fees and costs.

Pursuant to General Statutes § 22a-18(e) the trial court has CT Page 11535 discretion in awarding attorneys fees and related costs in this type of litigation. See Conservation Commission of Town of Simsbury v. Price, 5 Conn.App. 70, 74 (1985) (construing General Statutes § 22a-44(b) which permits assessment of attorneys fees “which may be allowed”); see also Gargano v. Heyman, 203 Conn. 618, 622 (1987) (attorneys fees under CUTPA).

Section 22a-18(e) requires that any fees or costs awarded must be reasonable. The Connecticut Appellate Court has held that factors set out in the decision of Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) should be applied to determine the reasonableness of fees. Steiger v. J.S. Builders, Inc., 39 Conn.App. 32, 38 (1995). These facts 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 “undersirability” of the case; (11) the nature and the length of the professional relationship with the client; and (12) awards in similar cases.

Subsequent to the decision in Johnson v. Georgia Highway Express, Inc., supra, but prior to Steiger v. J.S. Builders, Inc., supra, the United States Supreme Court, noting the factors enumerated in Johnson, faced the question of the relationship of results obtained to an award of attorneys fees. See Hensley v. Eckerhart, 461 U.S. 424, 432 (1983). This court has often relied on the reasoning of Hensley in deciding fee requests. Th Hensley court determined that where a party succeeded on only some of his claims for relief, a court must answer the question whether the failed claims were related or unrelated to the successful claims. It went on to state:

In some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories. In such a suit, even where the claims are brought against the same defendants . . . counsel’s work on one claim will be unrelated to his work on another claim. Accordingly, work on an unsuccessful claim cannot be deemed to have been expended in pursuit of the CT Page 11536 ultimate result achieved. The congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim.

Id., 461 US. 424, 434-35 (quotation marks, citation and footnote omitted). The Hensley court also stated that:

Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorneys fees reduced simply because the district court did not adopt each contention raised.

Id., 440. The Connecticut Supreme Court has cited the rationale of Hensley with approval in upholding a trial court’s rejection of a contention that because a plaintiff had won on only three of five related counts, two-fifths of the fees should not be awarded. Russell v. Dean Witter Reynolds, Inc., 220 Conn. 172, 195 (1986); see also Schnabel v. Tyler, 32 Conn.App. 704
(1993).

In making its determination on this fee application the court will consider all twelve of the Johnson factors although, a Hensley noted, many of these individual factors “usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate.” Hensley, supra, 461 U.S. 434 n. 9.

NHA contends that any fee and costs award should be sharply limited. It suggests that the court should award one-sixth of the fees and costs incurred since September 2004, the time when the 50 Day Street’s request to amend its complaint to add the Section 22a-16 claim was granted.

At oral argument on this application, 50 Day Street conceded that certain, rather negligible, additional amounts should be deducted from the attorneys fees request, but for the most part maintained its position that the fees, costs and expenses sought were related to the Section 22a-16 claim. Plaintiff also contends that the recent decision of the Connecticut Supreme Court i Simms v. Chaison, 277 Conn. 319 (2006) is persuasive authority for its request.

Simms is instructive, if not entirely on point with this CT Page 11537 case. In Simms the plaintiff sued the defendants alleging bigotry and bias in violation of General Statutes § 52-571. A partial verdict was rendered in favor of the plaintiffs who were each awarded only nominal damages of $10. The trial court awarded the plaintiffs eighty percent of their requested attorneys fees pursuant to § 52-571(c)(b) making the twenty percent reduction for some redundancy in the work performed by two attorneys. The Connecticut Supreme Court upheld the award of fees and found that it was consistent with federal authority as stated in Farrar v. Hobby, 506 U.S. 103 (1992) a case which found no attorneys fee award was appropriate where the plaintiffs sought $17 million, but won only nominal damages in an action brought under 42 U.S.C. § 1988. Without reviewing the lengthy analysis in which the Connecticut Supreme Court found that the Simms trial court’s award was not inconsistent with the rationale of Farrar suffice it to say that Simms v. Chaison held that measuring an award of fees by the plaintiff’s success in recovering damages is inappropriate under § 52-571c and upholds the discretion of a trial court to award ample attorneys fees where important rights were vindicated and the operative fee-shifting statute’s (i.e. Section 52-571c) purpose is broader than providing compensation for injuries.

The facts that this court considers most relevant in determining the appropriate award of fees and costs are set forth in the following paragraphs.

There can be no doubt that the basis for any award is the court’s finding of serious pollution existing on NHA property caused by NHA’s leaking tank. This is the sole violation of §22a-16 by NHA. While at oral argument 50 Day Street argued that the identification of pollution on its property was also the basis of a § 22a-16 violation this argument is not sustainable because the court did not find the pollution of 50 Day Street’s property to have been caused by NHA, a critical component of liability under the statute.

There also is little doubt that the primary goal and vast majority of 50 Day Street’s litigation efforts between 2002 and 2004 involved attempting to establish NHA’s culpability for the presence of pollution on 50 Day Street’s property, and that this effort was unsuccessful and the goal was not attained. The effort included the preparation and presentation of substantial written and testimonial evidence concerning ground water levels and flows on both the plaintiff’s and defendant’s property and expert CT Page 11538 testimony interpreting this evidence. In contrast, the proof of NHA’s pollution of its own property at trial consisted largely of eliciting the admission of NHA’s expert. Indeed, the primacy of plaintiff’s focus efforts to seek damages for pollution to its property is emphasized by the fact that the § 22a-16 count was not sought to be added to plaintiff’s complaint until just before trial.

Nevertheless, 50 Day Street’s efforts were critical to exposing the extensive oil pollution on NHA’s own property, a condition which NHA seemed willing to ignore. In the May 2005 decision on the merits of the case, NHA was found negligent on several grounds. It was 50 Day Street that initially brought the pollution issue to NRA’s attention, and, as this court pointed out:

after NHA received the initial report from Brooks Laboratories opining that the contamination on 50 Day Street did not come from NHA’s USTs the position enunciated by NHA was that the matter was “closed.” Ex. 36. Had not the Partnership proceeded with this litigation it seems likely that the substantial oil contamination of NHA’s soil and groundwater caused by the leaking Tank 3 would have been ignored and unremediated.

Memorandum of Decision, May 17, 2005, 22.

The court has considered the factors set forth in Steiger v. J.S. Builders, Inc. supra, and the somewhat less inclusive list of factors set forth in Rule 1.5(a) of the Rules of Professional Conduct. The hourly rates charged by plaintiff’s counsel are reasonable and this court has found similar rates to be comparable to the prevailing market rate in this area. Se Stuart v. Stuart, Superior Court, judicial district of Stamford-Norwalk at Stamford, X08 CV 02 0193031 (February 10, 2005); see also Bristol Technology, Inc. v. Microsoft Corporation, 127 F.Sup.2d 64, 75-76 and n. 15 (D.Conn. 2000). It should also be noted that NHA did not object to the hourly rates. The quality of the attorney work was very good particularly in light of the technical subject matter.

The court also notes that work which was related to the §22a-16 claim did occur prior to the filing of the request to amend the complaint in 2004. In the early part of 2003, for CT Page 11539 instance, the plaintiff’s experts attended and documented the removal of oil tanks from NHA’s property which led to a significant amount of evidence supporting the § 22a-16 claim, and the need for injunctive relief.

Having considered all the above factors, the court determines that 50 Day Street is entitled to thirty percent of the attorneys fees and twenty-five percent of the expert witness fees, and twenty-five percent of the costs requested.[1] While this is a substantial reduction from the plaintiff’s request it represents, in the court’s view, somewhat more than the actual time and effort required to prove the § 22a-16 claim which is the only basis for the claim of fee and cost shifting. This additional amount reflects three factors: that a small amount of the fees and costs incurred on the other claims of the plaintiff were related to the 22a-16 claims, that 50 Day Street’s effort as a private attorney general, in a sense, vindicated an important goal of maintaining environmental quality and that Section 22a-16
et seq. serves more of a purpose than merely providing compensation.

III. Conclusion
NHA is ordered to pay $113,242.66 in attorneys fees, $6,805.74 in costs and $30,604.37 in witness fees to 50 Day Street.

[1] The different percentages arise because some effort was made to eliminate attorneys fees unrelated to the Section 22a-16
claim. No such effort was made with respect to the witness fees and other costs.

CT Page 11540