ABATEMENT INDUSTRIES GROUP v. JOHN BRITTO.

2011 Ct. Sup. 22589
No. CV08 501 73 55 SConnecticut Superior Court Judicial District of Fairfield at Bridgeport
October 24, 2011

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
GILARDI, J.T.R.

On March 22, 2011, a judgment of foreclosure of a mechanics lien was awarded to the plaintiff, Abatement Industries Group (Abatement) against the defendant, John Britto (Britto) in the amount of $20,380. In addition, the court ordered a hearing be held to determine the amount of prejudgment interest to be awarded pursuant to C.G.S. § 37-3a, as well as reasonable attorneys fees to be awarded pursuant to C.G.S. § 52-249.

The defendant, John Britto, is the owner of a four-unit 100-year-old apartment house located at 522-538 Stillman Street, Bridgeport. During an inspection for a Certificate Of Apartment Occupancy it was determined that there were hazardous lead conditions in all four units located in the building. The defendant was cited for lead violations which carry civil and criminal penalties. He was referred to the Bridgeport Lead Free Families Program for financial assistance.

The city of Bridgeport has a federally funded project called the Bridgeport Lead Free Families Program which was created to alleviate the dangers of exposure to lead in Bridgeport. The lead abatement program is operated for the city of Bridgeport by the Bridgeport Neighborhood Trust under the authority of the Bridgeport Health Department. The director of the Department is Audrey Gaines. The Department tests children for lead poisoning and inspects homes to locate toxic sources of lead. If a lead hazard is identified, the Health Department issues an abatement enforcement order requiring the landlord to remove the lead as required by state law.

Warner Marshal is the director of the Regional Housing Rehabilitation Institute of Connecticut which has a contract with the Neighborhood Trust. Marshall conducts the entire field operations of a lead abatement project for the Trust. He initially inspects the properties once lead tests have been submitted. He then prepares specifications for the purpose of bidding and organizing the lead abatement for the particular CT Page 22590 property involved. After preparing the specifications, he organizes a bid walk through the property with prospective contractors. Once the bids are submitted he analyzes them and then works with the Agency to get the project going.

After a contractor has been selected, contracts are executed between the owner and contractor and between the Agency and the contractor. After the contracts are signed and the specifications attached, they are sent to the Health Department for approval and/or amendments assistance with respect to the costs of remediation.

Mr. Marshall accomplished the necessary preliminary procedures of inspecting the Stillman Street property, preparing the necessary bid specifications, conducting a bid walk through of the property with potential contractors and evaluating the proposed bid submitted by the contractors. The Trust accepted the bid submitted by the plaintiff, Abatement Industries Group for $68,380. The Neighborhood Trust, under the authority of the Bridgeport Health Department agreed to finance $48,000 of the cost with the balance of $20,380 to be paid by Britto through a low interest loan. His criminal, civil and financial liabilities were resolved.

In February 2007, Abatement requested a payment of $55,000 representing 80% of the completion of the project pursuant to the contract. The Bridgeport Neighborhood Trust and the Bridgeport Lead Free Families Program approved the payment. The Bridgeport Neighborhood Trust issued a draft in the amount of $48,000 representing their portion of the payment which was cosigned by the Trust and the owner.

An additional request was made by Bridgeport Neighborhood Trust and the Bridgeport Lead Free Families Program for a check to be issued in the amount of $7,000 which was to be signed by the defendant as part of his agreement. Ms Talton of the Bridgeport Neighborhood Trust visited the defendant requesting his signature on the check but he refused. He indicated that there were things he wanted done in the house and he would not sign the check until they had finished. There was no claim that the plaintiff failed in substantially supplying goods and services for the sole purpose of the project, lead remediation in the apartment house. The only criticism by the defendant was that Abatement had not completed the cosmetic improvements he wanted for his apartment house.

After the plaintiff completed his contract there was a final inspection done by the Bridgeport Neighborhood Trust, and the Bridgeport Health Department. Both found that the plaintiff had complied with the terms and conditions of the lead abatement contract. The Health CT Page 22591 Department conducted a subsequent inspection which determined there was no exposed lead in the four units of the apartment house. The Bridgeport Neighborhood Trust and the Bridgeport Health Department issued clearance letters to that effect.

In spite of the Abatement’s complete compliance of the terms and conditions of the lead abatement contract and certification of the completion by the respective agencies, the defendant refused to pay any portion of his obligation on the contract although ordered to do so by the agencies. Abatement filed a mechanics lien seeking a judgment of foreclosure which, as indicated, was awarded in March of 2011.

The hearing to determine the award of prejudgment interest and attorneys fees was held on August 9, 2011. The court has found that the following facts have been established and has based its decision on all the testimony and exhibits introduced at trial, together with the drawing of reasonable inferences and by taking into account the credibility of witnesses and legal principles raised by the Council and the respective briefs.

The plaintiff’s attorney, Winthrop Smith, Jr. submitted affidavits and supporting time sheets indicating the plaintiff’s attorneys time of 78.5 hours and initial affidavit and 81.25 hours in the supplemental affidavit with the hourly charge of $300 per hour for total $22,912.50 pursuant to the initial affidavit and $24,275 pursuant to the supplemental affidavit for total attorneys fees of $47,287.50 plus costs the amount of $3,035.54. In addition, the attorney submitted a supplemental affidavit interest calculated the matter to be $7951.06.

The defendant has claimed that the award requested was excessive and unnecessary. “The amount of attorneys 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 . . .”

“It is axiomatic that the determination of reasonableness of attorneys fees appropriately takes into consideration a range of factors. It is well established that a trial court calculating a reasonable attorneys CT Page 22592 fees 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.” (Citation omitted; emphasis added; internal quotation marks omitted.) Rodriguez v. Ancona, 88 Conn.App. 193, 201-02, 868 A.2d 807 (2005).

“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.” (Citations omitted; emphasis in original; internal quotation omitted.) Smith v. Snyder, 267 Conn. 456, 471, 839 A.2d 589 (2004).

“[T]he initial estimate of a reasonable attorneys fee is properly calculated by multiplying the number of hours reasonable 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 and 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 (2) awards in similar cases.” (Citations omitted, internal quotation marks omitted.) Ernst v. Deere Co., 92 Conn.App. 575, 576 (886 A.2d 845) (2005).

The “list of factors [the Johnson factors] is not . . . CT Page 22593 exclusive. The court may assess the reasonableness of the fees requested using any number of factors.” (Internal quotation marks omitted.)Id., 576 n. 3. 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, 877 A.2d 840 (2003), citing Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 246, 440 A.2d 306 (1982).”

The plaintiff called attorney Timothy Bishop to testify as an expert. Attorney Bishop related his qualifications as a specialist in mortgage foreclosures and familiarity with the rates and charges of attorneys practicing in this area. He testified that attorney Smith enjoys an excellent reputation and is himself a specialist in mortgage foreclosures. Pursuant to the lodestar calculation it was his opinion that the charge of $300 per hour was reasonable and within the amount usually charged by attorneys practicing mortgage foreclosures. He reviewed each and every entry of time sheet entries of attorney Smith and found them to be reasonable and necessary. The court reviewed the factors pursuant to 1.5(A) of the rules of professional conduct as well as the “Johnson” factors and makes no deduction of the lodestar calculations. This trial evolved into both complex and contested legal and evidential issues.

The defendant argues that the amount of the attorneys fees incurred by the plaintiff is far disproportionate to the amount foreclosure judgment of the mechanics lien and were unnecessary. Is the opinion of the court that the excessive amount of time expended by the attorney and the complexity of the issues which arose during this litigation were caused by the conduct of the defense. A review of the docket list would indicate the unnecessary legal expenses caused by the defendant’s somewhat dilatory conduct:

On August 1, 2008 motion for default for failure to appear was granted.

The plaintiff prepared and filed a motion for strict foreclosure.

The defendant finally filed an appearance on September 24, 2008 reopening the pleadings but failing to file a responsive pleading.

On October 21 the plaintiff obtained a default for failure to plead CT Page 22594 and again prepared and filed a motion for judgment of strict foreclosure.

While the motion for foreclosure was on the calendar, the defendant filed an answer on November 4, 2008 and the default was opened. The answer was a handwritten notation simply denying information and knowledge as to every allegation of the complaint.

On November 24, 2009 The Court ordered a pretrial conference to be held. The defendant failed to appear and the court entered another default against the defendant.

The plaintiff waited four months before moving the case forward and once again when the plaintiff filed its motion for foreclosure, the defendant moved to reopen the default which was granted.

Following the judgment in this matter, which was rendered on March 22, 2011, the defendant filed a motion to reargue/reconsider on April 8, 2011. The court scheduled an argument on the defendant’s motion to reargue on April 25, 2011, the plaintiff was in attendance but the defendant failed to appear to argue his own motion.

The trial itself fared no better. Initially and during the trial, the defendant raised both legal and factual claims which had not been claimed in the pleadings, including breach of contract and a violation of the Covenant of Good Faith and Fair Dealing. The evidence and testimony introduced with respect to those claims required the plaintiff to counter with additional evidence and testimony. At one point, the defendant even required that the plaintiff produce the marshal who made service to verify the lien had been properly filed.

The plaintiff was seeking a foreclosure judgment on a mechanics lien rather than on a mortgage. General Statutes § 49-33(a) provides in relevant part: “If any person has a claim for more than $10 for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its apartments is . . . and the claim is by virtue of an agreement with or by consent of the owner of the land . . . or some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands is subject to the payment of the claim.”

The claims breach of contract and the covenant good faith are somewhat problematical. There was never an application to discharge the mechanics liens or reduce its amount nor did the defendants file any CT Page 22595 special defenses.

Both parties agreed that this foreclosure was an equitable cause of action.

Generally in a foreclosure action, the defense of a breach of contract is prohibited. “The courts are consistent in holding that a breach of contract claim is neither a recognized defense to a foreclosure action nor a defense in equity.” (Internal quotation marks omitted.)Greenpoint Mortgage Corporation v. Ruisi, Superior Court, Judicial District of Danbury, Docket No. 333106 (June 1, 1999, Moraghan, J.).

There was a great deal of testimony introduced by both parties with respect to the elimination of an initial specification that the door jambs in the apartment house were to be removed and replaced.

In his post-trial brief the defendant represented that the basis for a breach of contract and bad faith was the “proven and undisputed fact” . . . “That the change order eliminating the replacement of door [jams] and casings was a unilateral decision by the plaintiff. It does not appear that the BNT was even aware of the jam/casing change until after had been completed. It was a fete de complete.”

To the contrary, Mr. Marshall, on behalf of the Bridgeport Neighborhood Trust, testified that he inspected the premises and determined that he made a mistake in the specifications by ordering removal of the casings and door jambs from a plaster wall. They require their removal with sheetrock but with plaster they do not as it could cause the plaster to crack requiring replacement of the entire wall. He instructed manager of Abatement, Mr. Nericcio, not to remove the casing and doorjambs but to encapsulate the contact areas. Mr. Nericcio testified he was aware of the initial specification requiring removal of the casing and door jambs and was willing to accept the risk.

Mr. Marshall had obtained for approval of the change from Ms. Gaines of the Bridgeport Health Department. He subsequently wrote a memo outlining the change. Although she did not reply in writing, she confirmed her approval and issued a clearance letter for the project.

Ms. Talton, of the Bridgeport Neighborhood Trust, testified that there was a meeting concerning the change. In attendance were representatives from the Bridgeport Neighborhood Trust, The Bridgeport Lead Free Families Program, the City of Bridgeport Warner Marshal and the plaintiff, Mr. Britto. All were in agreement to the change. The CT Page 22596 defendant approved the change in order to avoid any potential further expenses and was only concerned about the quality of the doors and trim being installed.

Summarily, that there was no credible evidence to substantiate such a representation and it certainly was not “proven” or “undisputed.”

With respect to the claim of breach of contract, it was repeated several times by the agency representatives that the federal program provided for lead remediation and did not provide for cosmetic improvements. Mr. Britto offered no complaints about the efficacy of the lead remediation conducted by Abatement, but that the cosmetic improvements he wanted were not done. When Ms. Talton was asked what new items that the defendant demanded, she testified he wanted “new everything.” Britto testified that they promised him his house would be “beautiful when it was done; . . . That they would put in all-new wood and stuff”; that they would “fix the porches and everything and everything.” He testified it was a good deal and he would be able to increase the tenants’ rent “like $50 a month.”

In spite of the fact all of the agencies involved in supervising this contract found that Abatement had complied with all of the terms and conditions of the contract, that the plaintiff had received $68,000 worth of improvements to his apartment and his exposure to both criminal and civil charges for the hazard conditions he allowed to remain in his apartment had been eliminated, it was his position that he should not pay anything. As was adequately summarized by Ms. Talton: “. . . it’s lead remediation, not home improvement.”

It was, in fact, the defendant who breached the contract in February of 2007 when he refused payment of the 80% installment due under the contract when requested by the Bridgeport Neighborhood Trust and the Bridgeport Lead Free Families Program claiming he would make no additional payments until the project was finished to his satisfaction. “A positive statement to the promisee that the promisor will not perform his contract constitutes an anticipatory breach which is a total breach of contract” Sagamore Corporation v. Willcutt, 120 Conn. 315, 318.

As to conduct constituting bad faith, in spite of the requirement that remediation contracts do not provide for cosmetic improvements Britto apparently met with the housing Commissioner when the contract was being drawn up. Britto requested and received a change order for the installation of 17 additional exterior windows for cosmetic purposes only. Before Abatement became aware and would have been able to CT Page 22597 challenge the change order that the additional windows to be installed, the defendant went to the job site and, without authority, instructed the plaintiff’s subcontractor to install the additional windows. Upon discovery of their installation, the plaintiff was unable to even negotiate an adjustment to the contract price. As a result of the conduct of the defendant, the window manufacturer filed a claim against the plaintiff and Abatement had to file a claim against the window installer resulting in the cost of the additional windows to be borne, not by the defendant, but by the subcontractor.

At the conclusion of the trial, the plaintiff suggested that post-trial briefs were unnecessary and additional legal fees could be avoided. The defendant’s objection resulted in both parties filing post-trial and reply briefs.

While the defendant was certainly within his rights to conduct whatever tenacious defense tactics were felt to be necessary, in this case the defendant is responsible to the plaintiff for the extensive legal fees caused by that conduct.

The plaintiff is awarded attorneys fees the amount of $47,287.50 plus costs in the amount of $3,035.54. In addition, prejudgment interest is awarded in the amount of $7,951.06 for total outstanding award of $58,274.10. Judgment is entered accordingly.

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