Law Office A. Reynolds Gordon v. Glenn Gorelick
115029460
????Decided: January 19, 2012
This is a hearing de novo on the application of the plaintiffs, the Law Office of A. Reynolds Gordon and the law firm of Gordon and DeNicola, for a prejudgment remedy. ? The plaintiffs have brought this application for a prejudgment remedy for unpaid legal fees resulting from a decade long litigation in which the plaintiffs represented the defendant, Glenn Gorelick. ? The court heard and granted the application in 2011. ? However, the plaintiffs failed to serve and return to court the writ, summons and complaint for which the prejudgment remedy was allowed. ? For this reason, the prejudgment remedy was dismissed pursuant to General Statutes ??52?278j(a).1??Thereafter, the plaintiffs again filed for a prejudgment remedy.
The defendant objects to the prejudgment remedy because he was not properly served. ?General Statutes ??52?278c provides: ??(a) Except as provided in sections 52?278e and 52?278f, any person desiring to secure a prejudgment remedy shall attach his proposed unsigned writ, summons and complaint to the following documents ?
?(3)?A form of order that a hearing be held before the court or a judge thereof to determine whether or not the prejudgment remedy requested should be granted and that notice of such hearing complying with subsection (e) of this section be given to the defendant;
?(4)?A form of summons directed to a proper officer commanding him to serve upon the defendant at least four days prior to the date of the hearing, pursuant to the law pertaining to the manner of service of civil process, the application, a true and attested copy of the writ, summons and complaint, such affidavit and the order and notice of hearing ??
The defendant did not receive this form of order nor was he again served by an officer.
However, the application for prejudgment remedy now before the court was filed on December 5, 2011, after the institution of this action on November 15, 2011. ?General Statutes ??52?278h states: ??The provisions of this chapter shall apply to any application for prejudgment remedy filed by the plaintiff at any time after the institution of the action, and the forms and procedures provided therein shall be adapted accordingly.? ? It has long been the rule that an action is instituted, or commenced, at the time of service of process. ? The marshal’s return of service establishes that the defendant was served with the writ, summons and complaint on November 8, 2011. ? Therefore, this prejudgment remedy was sought pursuant to ??52?578h. ? Moreover, General Statutes ??52?278m states: ??Whenever a prejudgment remedy is sought under the provisions of sections 52?278h or 52?278i against a party who has previously filed a general appearance in such action, personal service of any application or order upon such party shall not be required, unless ordered by the court, but any such application or order may be served in the same manner as any motion in such action.? ? Motions in civil actions typically are served by regular mail to the last known address of the attorney or party. ?Practice Book ??10?13. ? ?[T]he mailing of a properly addressed letter creates a presumption of timely notice unless contrary evidence is presented.? ?Daniels v. Statewide Grievance Committee, 72 Conn.App. 203, 211 (2002). ? No contrary evidence has been presented. ? The court concludes that the defendant was properly served pursuant to General Statutes ??52?278m.
Turning to the merits of the case, the court finds that the plaintiffs represented the defendant for over a decade in intra-family litigation involving three properties, but principally a property located on Boston Avenue in Bridgeport. ? That litigation resulted in three appeals to the Appellate Court. ? See Gorelick v. Montanaro, 119 Conn.App. 785, 990 A.2d 371 (2010), Gorelick v. Montanaro, 94 Conn.App. 14, 891 A.2d 41 (2006), and Montanaro v. Gorelick, 73 Conn.App. 319, 807 A.2d 1083 (2002). ? Other appellate cases were also spawned by this internecine dispute, although they did not generate the attorneys fees involved in this proceeding. ? See Berty v. Gorelick, 59 Conn.App. 62, 756 A.2d 856, cert. denied, 254 Conn. 933, 761 A.2d 751 (2000), and Carpenter v. Montanaro, 52 Conn.App. 55, 725 A.2d 390 (1999). ? Reference may be made to the court’s July 21, 2011 earlier memorandum of decision for the factual history of the dispute and the standard for granting a prejudgment remedy.
The plaintiffs represented the defendant pursuant to written and oral agreements. ? As is apt to happen in internecine disputes, this litigation was unusually contentious as well as complex. ? Attorney A. Reynolds Gordon is an attorney of over fifty years who specializes in commercial litigation.
The court appreciates that the defendant has already paid a good deal toward his attorneys fees. ? In fact, he has paid over $160,000 in fees. ? The plaintiffs claim that he still owes $144,000 and seek a prejudgment remedy of $170,000. ? The principal issue is what amount of attorneys fees remains owing.
The parties are at issue over whether an August 2006 agreement between them that the defendant would ?pay, starting August 8, 2006, 5% interest on the outstanding bills? pertains to the defendant’s existing balance or to future balances as well. ? The defendant contends that the agreement pertained to the existing or past balance only. ? The plaintiffs contend that it applies to future balances as well.
?A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. ? ?(Emphasis added; ?internal quotation marks omitted.) ?Remillard v. Remillard, 297 Conn. 345, 355, 999 A.2d 713 (2010). ??The rule is that the language contained in a contract is to be given its ordinary meaning unless a technical or special meaning is clearly intended.? ?Cogan v. Cogan, 186 Conn. 592, 596, 442 A.2d 1342 (1982).
?Outstanding? is defined as ?unpaid? or ?unresolved.? ? The Merriam Webster Dictionary; ?see also Norton v. Lusk, 248 Ala. 110, 120, 26 So.2d 849 (1946) (? ?Outstanding? is defined by Webster’s New International Dictionary; ?Second Edition, as ?undischarged; ?uncollected or unpaid; ?unsettled; ?undetermined? and by Black’s Law Dictionary, Third Edition, as ?remaining undischarged; ?unpaid, uncollected; ?as an outstanding debt.? ?).
Turning to the circumstances connected with the transaction, the court finds that at the time of the 5% agreement, the defendant owed the plaintiffs a substantial amount and the litigation was very much ongoing. ? There was no reason to believe that the defendant would soon be paying off the entire balance. ? Rather, it was likely that the balance would continue to grow. ? In light of these circumstances, it is unlikely that the parties intended to resolve the issue of interest only with respect to the balance owing in August 2006 and leave unresolved the issue of interest on sums virtually certain to become due and payable in futuro.
Moreover, the 5% interest rate is more favorable to the defendant than the law otherwise provides without an agreement. ? At all times relevant hereto, General Statutes ??37a?3a provided in relevant part: ??Except as provided in sections 37?3b [Rate of interest recoverable in negligence actions?], 37?3c [?Rate of interest recoverable in condemnation cases?] and 52?192a [Interest on offers of compromise], interest at the rate of ten percent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable.? ? This statute applies not only to money loaned in the conventional sense but also to garden variety breach of contract actions seeking the recovery of liquidated damages. ? See Flynn v. Kaumeyer, 67 Conn.App. 100 (2001) 787 A.2d 37 (2001); ?Harris Calorific Sales Co. v. Manifold Systems, 18 Conn.App. 559, 555?56, 559 A.2d 241 (1989).
Section 37a?3a does not mandate interest of 10% but, rather, sets a ceiling of 10%. ?Sears, Roebuck and Company v. Board of Tax Review, 241 Conn. 749, 765?66, 699 A.2d 81 (1998). ? Ordinarily, the decision of whether to grant interest under ??37?3a is primarily an equitable determination and a matter lying within the discretion of the court. ?Sosin v. Sosin, 300 Conn. 205, 227, 14 A.3d 307 (2011). ? The court may award interest even when a party has disputed his liability in good faith and with justification. ?Id., 235.
In determining what rate of interest is reasonable and just the court has broad discretion. ? Cf. Sears, Roebuck & Co. v. Board of Tax Review, supra, 241 Conn. 765?66. ??This court’s determination of a ?reasonable and just? rate of interest is informed by a decision of the Ninth Circuit Court of Appeals, in which the court stated that ?[t]o determine the appropriate rate of interest when payment of just compensation is delayed, the district court must examine what a reasonably prudent person investing funds so as to produce a reasonable return while maintaining safety of principal would receive ? The district court should apply an interest rate based on evidence of the rate that would be generated by investment in a diverse group of securities, including treasury bills.? ?Schneider v. County of San Diego, 285 F.3d 784, 793 (9th Cir2002); ?see Leverty & Hurley Co. v. Commissioner of Transportation, [192 Conn. 377, 382, 471 A.2d 958 (1984)?] (court acknowledged reasonably prudent investor criteria, but noted that trial court was not to award that rate’); ?West Haven Housing Authority v. CB Alexander Real Estate, LLC, Superior Court, judicial district of New Haven, Docket No. CV 04 0489106 (October 29, 2008, Corradino, J.) (46 Conn. L. Rptr. 583, 584) (?[A] reasonable rate of interest posits an actor striving to achieve it which would be a reasonably prudent investor.?).? ?(Footnote omitted.) ? Shelton v. Wiacek Farms, LLC, Superior Court, judicial district of Ansonia?Milford No 4001956 (Feb. 24, 2009, Levin, J.).
In the absence of an agreement as to the applicable rate of interest, the court would award interest to the plaintiffs. ? For the period 2006 through 2008, that rate would be well above 5%. For the years 2009 and 2010, that rate would be at or below 5%. For 2011, the rate would be at or above 5%.
?Section 37?3a,? however, ?applies only where the parties have not agreed otherwise.? ?Cadle Company v. D’Addario, 131 Conn.App. 223, 247, 26 A.3d 682 (2011). ? Overall, the parties’ agreed upon interest rate of 5% is more favorable to the defendant than what the court would otherwise order as interest. ? Since the plaintiffs advocate for the application of that rate, the court declines to determine whether the parties’ August 2006 agreement applied to future outstanding balances.
The defendant has argued that the plaintiffs over-litigated this case. ? The court has given careful consideration to this claim. ? The defendant expressed this concern to the plaintiffs as early as 2005. ? He asked to receive monthly billings and advised the plaintiffs in writing that ?these telephone calls are out of hand. ? Please no more telephone calls/charges unless authorized by me.?
The plaintiffs did assiduously litigate this matter. ? However, the defendant testified that the case ?became an obsession? with him. ??I could have been on a psychoanalyst’s couch,? he testified.
The defendant has argued that the plaintiffs had a fiduciary duty to tell him to drop the case. ? Essentially, they did. ? The defendant received a settlement offer that the plaintiffs advised him to accept. ? The defendant refused.
The defendant has filed a counterclaim alleging legal malpractice. ? Specifically, the defendant alleges that the plaintiffs advised the defendant to advance legal positions and theories in the litigation that they knew or should have known were without merit.
As the Supreme Court wrote earlier this month, ?In general, the plaintiff in an malpractice action must establish: ?(1) the existence of an attorney-client relationship; ?(2) the attorney’s wrongful act or omission; ?(3) causation; ?and (4) damages ? As a general rule, for a plaintiff to prevail in a legal malpractice case in Connecticut, he must present expert testimony to establish the standard of proper professional skill or care ?
?There is an exception to this rule, however, where there is such an obvious and gross want of care and skill that the neglect is clear even to a lay person ? Nevertheless, exception to the need for expert testimony is limited to situations in which the defendant attorney essentially has done nothing whatsoever to represent his or her client’s interests ?? (Internal quotations marks omitted.) ?Grimm v. Fox, 303 Conn. 322, 330 (2012). ? The exception clearly does not apply here. ? Since the defendant has not presented any expert testimony as to the standard of care he claims the plaintiffs breached?nor is such a breach obvious to the court?the court does not consider his counterclaim.
Finally, the defendant pleads as a special defense that the plaintiffs coerced him to execute a promissory note which purports to liquidate a debt and provides for interest on that debt. ? I adhere to my discussion last summer of this claim, to which the law as stated in Noble v. White, 66 Conn.App. 54, 57?59, 783 A.2d 1145 (2001), on appeal after remand, 85 Conn.App. 233, 857 A.2d 362 (2004), applies.
Considering the evidence in light of the standard to applied on an application for a prejudgment remedy, the court grants the plaintiffs’ application and orders that a prejudgment remedy issue in the amount of $141,000, inclusive of prejudgment interest.
The plaintiffs have filed a motion for disclosure of assets pursuant to Practice Book ??13?13. ? See also General Statutes ??52?278n. ? The motion is granted. ? A hearing will be held before any judge of this court on Monday, February 6, 2012.
BY THE COURT
Bruce L. Levin
Judge of the Superior Court
FOOTNOTES
FN1.?General Statutes ??52?278j(a) provides: ??If an application for a prejudgment remedy is granted but the plaintiff, within thirty days thereof, does not serve and return to court the writ, summons and complaint for which the prejudgment remedy was allowed, the court shall dismiss the prejudgment remedy.?.??FN1.?General Statutes ??52?278j(a) provides: ??If an application for a prejudgment remedy is granted but the plaintiff, within thirty days thereof, does not serve and return to court the writ, summons and complaint for which the prejudgment remedy was allowed, the court shall dismiss the prejudgment remedy.?
Levin, Bruce L., J.