2011 Ct. Sup. 20229
Nos. FST CV 08 5005953, FST CV 08 5005954 SConnecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
September 20, 2011
SUPPLEMENTAL MEMORANDUM OF DECISION
A. WILLIAM MOTTOLESE, J.T.R.
This is the final phase of the dispute between the parties at the trial court level. In part G. of the report of the attorney trial referee (ATR) the following appears: “The above plaintiffs are also entitled to attorneys fees.” . . . Because no evidence to support the plaintiffs’ claim to attorneys fees was ever formally submitted to the attorney trial referee, the amount of the fees was never fixed by the ATR. At the hearing held on the defendant’s objection to acceptance of the ATR report both counsel agreed with the court’s suggestion that the issue be reserved to the court for determination after a full evidentiary hearing.
At that hearing the plaintiff introduced into evidence what the parties refer to as a “Joint Representation Agreement” (Ex. 1, 2, B1, B2, B3, B4)[1] between the plaintiffs, Joseph Schott, LLC (`Schott”) and plaintiffs’ counsel. The court finds that the “agreement” by its terms seems to be limited in scope to “representation . . . in connection with the Applications to Discharge Mechanic’s Lien that have been filed by the above plaintiff in the Stamford Superior Court.” Notwithstanding, the parties have treated the document as applying to every other aspect the parties dispute, including the proceeding before the ATR. The court will likewise do so.
The defendants resist the payment of fees on two grounds: (i) the joint representation agreement is void as against public policy and (ii) since the agreement includes the general contractor, (“Schott”) as a signatory, the pro rata allocation of the fee ought to include the amount of Schott’s lien, thus reducing significantly the pro rata allocation of fees to these plaintiffs.
The plaintiffs counter that the defendants have waived their right to raise the defense that the agreement violates public policy because they have failed to raise it as a special defense. Apart from making this CT Page 20230 assertion in their Reply to the defendants objection to the ATR report, the plaintiffs have offered no analysis to support their claim. “We consistently have held that [a]nalysis rather mere abstract assertion is required in order to avoid abandoning an issue by failure to brief the issue properly” . . . Rosier v. Rosier, 103 Conn.App. 338, 340 n. 2 (2007).
In characterizing the agreement void as against public policy the defendant relies on Rice v. Farell, 129 Conn. 362 (1942). The court is not persuaded that the rule enunciated in this case has been circumvented. The rule set forth in Rice and restated in Berlinski v. Ouellette, 164 Conn. 482, 496-97 (1973), is that as long as a party who is financing the litigation has any interest, great or small, certain or uncertain in the subject matter of the suit of another which was not acquired as the result of an agreement to aid in the maintenance of the suit, it is not against public policy for him to render such aid.” Id., at 366.
“The situation, however where one having a right he desires to assert asks another to assist in the necessary litigation differs essentially from that where a person having no interest in the subject matter of the controversy instigates legal proceedings and offers to pay the expenses in return for a benefit he is to receive if the litigation is successful. Beyond sustaining agreements falling within the principles of these cases, we have never gone.” Id.
Applying this doctrine to the facts of this case, the court must determine whether Schott had an interest, actual or potential, in the subject matter of the lien discharge action and/or the current action. Unquestionably, the response must be affirmative.
Although ordinarily the question of contact interpretation, being a question of the parties’ intent, is a question of fact; Gurliacci v. Mayer, 218 Conn. 531, 567 (1991); Finley v. Aetna Life Casualty Co., 202 Conn. 190, 199 (1987); “(w)here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. Thompson Peck, Inc. v. Harbor Marine Contracting Corp., 203 Conn. 123, 131 (1987).” (Internal quotation marks omitted.) Mulligan v. Rioux, 229 Conn. 716, 740
(1994).
It is the general rule that a contract is to be CT Page 20231 interpreted according to the intent expressed in its language and not by an intent the court may believe existed in the minds of the parties. Id.; Barnard v. Barnard, 214 Conn. 99, 110 (1990); Powell v. Burke, 178 Conn. 384, 387 (1979). When the intention conveyed by the terms of an agreement is “clear and unambiguous, there is no room for construction.” Gino’s Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 138 (1984). “[A] court cannot import into [an] agreement a different provision nor can the construction of the agreement be changed to vary the express limitations of its terms.” Hatcho Corp. v. Della Pietra, 195 Conn. 18, 21 (1985); see also Bank of Boston Connecticut v. Schlessinger, 220 Conn. 152, 159 (1991).
(Alternate citations omitted.) Levine v. Massey, 232 Conn. 272, 277-78
(1995).
The court finds that the language of the agreement is clear and definitive. The second paragraph recites that “Joseph Schott, LLC has obligations to each of the other companies for subcontracting work that was hired for the project being constructed at the premises located at 51 Maple Avenue North, Westport, Connecticut (“Premises).” Because Schott owed the subcontractor signatories balances for the work they performed on the “premises” it had a direct, immediate financial interest in limiting his losses by entering into an agreement whereby he assumed the primary obligation to pay all of the attorneys fees incurred in the litigation and if in default of that obligation, then the fees will be paid by the subcontractors on a pro rata basis. The specific contractual provision reads as follows:
“This letter shall further confirm that the legal fees and costs that will be incurred in connection with my representation has been agreed to be paid by Joseph Schott, LLC. If for any reason Joseph Schott, LLC fails to pay my invoices, each of you agree to be responsible for such invoices on a pro rata basis determined by the amount of your subcontractor’s lien versus the aggregate of all of the liens.”
The legal claims which the defendants make in reliance on Rice v. Farell, supra, completely misconstrue the lesson of the case. The charges that a.) . . .”by paying the costs of the lawsuits . . . Schott has kept the plaintiffs from making claims against him and his company,” and b.) . . .”that Schott benefits from the litigation that it finances” are squarely within the rule enunciated by the court. CT Page 20232
The defendants’ second argument is that at the time the joint representation agreement was signed on March 8, 2007 Schott already had a mechanic’s lien on file and therefore the attorneys fees should include Schott on a pro rata basis. They argue further that as of the date of the agreement Schott’s lien was stated to be in excess of the total of the plaintiff’s two liens and therefore his pro rata should be greater than the plaintiffs. To be specific, the total fees allocated to all subcontractors is $82,835.12, of this, $46,399.11 is applicable to these two plaintiffs.[2] The plaintiffs argue that if Schott’s lien is added to the total of all four subcontractors’ liens the pro rata shares allocable to the two plaintiffs would be reduced to 5.74% of the total or $4,755 for JR Remodeling and $8,300 for absolute Plumbing Heating rather than $17,766.05 and $31,614.81 respectively, as claimed by these two plaintiffs.
The defendants have steadfastly maintained throughout this proceeding that Schott’s mechanic’s lien is invalid from the day it was filed because the construction contract upon which it was based was invalid for failure to comply with the Home Improvement Act (G. S. § 20-429). On April 16, 2010 this court (Tobin, J.) found in an action brought by the defendant to dissolve the lien that (Schott) had failed to carry its burden of showing probable cause pursuant to G.S. § 49-35b(a) and entered an order discharging the mechanic’s lien because of a “failure to comply with an essential term of the home improvement act.”
Sec. 20-429 provides in pertinent part that “no home improvement contract shall be valid or enforceable against an owner unless it satisfies time requirements.” . . . The court’s task is to determine whether such a contract is void ab initio or merely voidable for if it were the latter, it may be presumed that the lien which was predicated on it was valid until declared invalid by the court. The word “valid” is not defined. Resort may therefore be had to a dictionary definition of the word. “When construing a term [where not defined in the statute] we look to its commonly approved usage, an inquiry that is often enhanced by the examination of dictionary definitions.” Kelo v. City of New London, 268 Conn. 1, 17 (2004); Ballentine’s Law Dictionary 3rd ed. at 661 defines the word as follows: “illegal, having no force or effect or efficacy; void; null” Our courts have construed the words “invalid” and “void” synonymously. Valentine v. Community Remodeling Co., 90 Conn.App. 255 (2005); CR Lewin Northeast, LLC v. City of Bridgeport, 282 Conn. 54 (2007). Thus, the home improvement contract at issue was invalid and void ab initio at the time it was created. Therefore, the discharge of the lien by the court acted retrospectively, relating back to the date of the contract and to the lien which was based on the CT Page 20233 contract. This analysis leads necessarily to the conclusion that at the time of the agreement of May 7, 2007, Schott’s lien was invalid and void and therefore cannot be included in the pool of available pro rata fee shares contemplated by the agreement.
Finally, the court notes that no challenge has been made to the legitimacy of any of the time charges or any of the several different hourly rates charged for the various personnel that are included in the billing. In this highly contentious and multifaceted proceeding the court cannot say that the charges are unreasonable or unfair. Accordingly the plaintiffs are entitled to attorneys fees as follows: J.R. Remodeling, LLC — $16,691.50; Absolute Plumbing Heating, LLC — $29,707.51.
For his failure to comply with the court’s order of June 9, 2011 Attorney O’Rourke is ordered to make a donation to a charity of his choice in the amount of $100 in lieu of a fine. G.S. § 51-84, and provide the court proof of payment within two weeks.
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