2005 Ct. Sup. 2114
No. X08 CV02 0193031Connecticut Superior Court, Judicial District of Stamford-Norwalk at Stamford
February 10, 2005
MEMORANDUM OF DECISION RE PLAINTIFFS’ MOTION FOR ATTORNEYS FEES
ADAMS, JUDGE.
I. Background
After a lengthy bench trial this court rendered a memorandum of decision dated June 28, 2004 (Decision) which found in favor of the plaintiffs William and Jonathan Stuart on many, but by no means all, of their claims against their brother Kenneth Stuart, Jr. (37 Conn. L. Rptr. 367). The plaintiffs now move for an award of attorneys fees.
The parties agree that the only basis for such an award is one count of the nine-count complaint in which the plaintiffs made a claim pursuant to the Connecticut Unfair Trade Practices Act, General Statutes §§ 42-110a et seq. (CUTPA). Specifically, that statute provides that “the court may award . . . reasonable attorneys fees based on the work reasonably performed by any attorney and not on the amount of recovery.” Id., § 42-110g(d).
The CUTPA claims were brought against Kenneth Stuart, Jr. (Stuart, Jr.), his wife Deborah Christman Stuart and Christman Stuart Interiors (CSI) a business jointly owned by Stuart, Jr. and Christman Stuart. The nature of the CUTPA claims against Christman Stuart and CSI primarily involved certain transactions between CSI and Talbot House, an entity ninety-nine percent owned by Stuart Sons. The CUTPA claims against Stuart, Jr. involved the same claim as well as other claims based on actions in his fiduciary capacity as a trustee or executor and as general partner of Stuart Sons. All the CUTPA claims against Stuart, Jr. and Christman Stuart were dismissed, but the CUTPA claim against CSI was sustained.
The CUTPA claim was added to the case by a request to amend the CT Page 2115 complaint made in March 2003, ten years after the initial complaint was filed. The request to amend also sought to add CSI as a new defendant. Over objection, the amendment was allowed in April 2003, and the trial postponed until September of that year.
The plaintiff’s motion for attorneys fees, as filed, sought the entirety of all attorneys fees paid by the plaintiffs, amounting to about $580,000.00. The plaintiffs have not paid $184,043.46 of fees billed them by the firm of Rucci, Burnham, Carta Edelberg, LLP (RECE) which acted as their counsel from August 2000 until June 2003, an amount which they dispute, and which they explicitly state is not included in their fee request.
At the hearing on the motion, the plaintiffs sensibly reduced their fee request to fifteen percent of the paid fees. They contend that the CUTPA count was one of nine counts that were litigated (there were no counterclaims or cross claims) and that count took up approximately fifteen percent of the time spent on pre-trial discovery, motions etc, the trial itself, and post-trial briefing.
CSI points out that only one of the three defendants named in the CUTPA count was found to be in violation of that statute. It also points out that there is very little evidence before the court as to how much lawyer time was spent on the CUTPA count prior to trial, and that the case was litigated for many years before CSI and the CUTPA count was added.
III. Legal Standards
The trial court has considerable discretion in the area of making an award of attorneys fees under CUTPA. Gargano v. Heyman, 203 Conn. 616, 622 (1987). It is axiomatic that a party must prevail on at least a part of its CUTPA claim to be entitled to seek a fee award. Vezina v. Nautilus Pools, Inc., 27 Conn.App. 810, 821 (1992). CUTPA, however, only authorizes an award of fees which are related to the prosecution of a CUTPA claim not those which were engendered by the prosecution of other claims in the suit. Jacques All Trades Corp. v. Brown, 57 Conn.App. 189, 199 (2000).
As pointed out above, the plaintiffs’ CUTPA claim encompassed two elements and was directed at three defendants. The CUTPA CT Page 2116 count re-alleged all the allegations in the preceding eight counts of the operative complaint and stated such conduct was a violation of CUTPA. Most of the preceding allegations involved the actions of Stuart, Jr. in his role as part architect of his father’s estate planning and as a fiduciary under his father’s trust, and will, and as general partner of Stuart Sons, an entity of which Stuart, Jr. was the sole general partners after his father’s death in 1993. The court determined that these allegations and the proof thereunder did not establish a CUTPA violation. Decision 70-72. Count Eight, claiming unjust enrichment, alleged a series of distinct and separate events involving the transfer of assets from Talbot House to CSI in which Stuart Jr., Christman Stuart and CSI were involved. The court found in favor of the plaintiffs, but against CSI only, in the net amount of $50,049.52 on the unjust enrichment claim. Decision 65-70. The court also found that the actions of CSI which led to the unjust enrichment award against it also constituted a violation of CUTPA by CSI. Decision 72-73.
CUTPA itself requires that any attorneys fees awarded must be “reasonable” and “based on the work reasonably performed by an attorney.” General Statutes § 42-110g(d). The Connecticut Appellate Court has held that factors set out in the decision o 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 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;
CT Page 2117
(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.
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). The 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 ultimate result achieved. The congressional intent to limit awards to prevailing parties requires that CT Page 2118 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 U.S. 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 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., 200 Conn. 172, 195 (1986); see also Schnabel v. Tyler, 32 Conn.App. 704
(1993).
The court concludes that the Hensley approach has been adopted in Connecticut law and will apply it as appropriate to this case, with the caveat that CUTPA requires a fee award to be based on work performed and not on the amount recovered. 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.
Analysis of Fee Request A. Cohen Wolf Fees.
The plaintiffs retained the law firm of Cohen Wolf to initiate the law suit in 1993 and that firm represented the plaintiffs until 2000. According to plaintiff’s motion Cohen
Wolf was paid “in excess of $25,000.00.” No bills, time sheets or affidavits were offered to substantiate this figure. Additionally, at no time during the Cohen Wolf representation was there ever a CUTPA claim and there is no evidence that such a claim was considered or its viability researched. The court will not grant any fee request based on the Cohen Wolf fees. CT Page 2119
B. RBCE Fees.
RBCE billed a total of $567,530.72 during its representation of the plaintiffs through June 2003. As set forth in Attorney Mark Carta’s affidavit, which has not been contested, $538,547.00 was billed as fees and $28,983.72 as costs and expenses. The vast bulk of these fees were based on the services of Attorneys Carta and Sandra Akoury. Attorney Carta’s time was billed at an hourly rate ranging from $260.00 to $300.00 per hour which came to an average of $266.00 per hour. Attorney Akoury’s time was billed at an average of $169.00 per hour. CSI has not objected to these hourly rates, and the court finds them to be reasonable.
As noted, the plaintiffs have not paid, and do not seek an award based on $184,043.46 of the bills rendered by RBCE. Since the unpaid sum is precisely the amount of RBCE’s last four monthly bills, for the period March through June 2003, it seems clear that the plaintiffs did not pay those four bills and are foregoing a fee award based on them. That leaves the $383,487.26 of fees and costs incurred between August 2000 and February 2003.
At oral argument the plaintiffs claimed that they first learned about the existence of CSI in July of 2002 shortly after there had been a hearing on plaintiffs’ request for an injunction. They axe requesting a fee award of fifteen percent of the RBCE bills from that time until the time that they stopped paying the RBCE bills which occurred at the end of February 2003. The actual bills for fees and costs from July 1, 2002 through February 28, 2003 totaled $166,729.00 in fees and $11,606.60 in expenses.
However, the court’s examination of the RBCE bills for that period, and the Carta affidavit, for that is the only hard evidence before it, fails to reflect that fifteen percent of those bills reflect work on the CUTPA claim.
At the outset, the court determines under the Hensley
analysis that the part of the CUTPA claim against Stuart, Jr. based on his breach of fiduciary duties which was unsuccessful was also distinct from and unrelated to the CUTPA claim against Stuart, Jr., Christman Stuart and CSI arising out of transfer of assets to CSI. This latter claim involved a discrete set of facts (inventory, sales, creation of CSI and demise of Talbot House) and time frame (the year 2000) essentially unconnected to the fiduciary issues. On the other hand, the time spent pursuing Christman Stuart and Stuart, Jr. on that part of the CUTPA claim, CT Page 2120 which was eventually unsuccessful, was sufficiently related to the successful claim against CSI to be allowable in a fee award.
While the RBCE time records from July 2002 through February 2003 reflect mostly work on other aspects of the case, there was time spent obtaining records from the accountant Bliss and Ridgefield Bank, attention paid to the Talbot House inventory, work done with the expert Dempsey in analyzing the CSI and Talbot House records, preparation for and the taking of Christman Smart’s deposition, and discussion and work (or beginning of the work) on amending the complaint to add CSI as a defendant and to add a CUTPA count and other related matters. Given the fact that many entries on the bills covered more than one subject, it is difficult to assign an exact amount of time to each CUTPA-related activity. After a careful review and using some educated estimates, the court finds that $11,384.00 of fees is attributable to the successful CUTPA claim during this period. This is 6.83% of the total fees for this time and the court will apply that percentage to the expenses during that period to come to an allocation of $792.73. Therefore, a total of $12,176.73 is an appropriate award based on the RBCE fees and expenses.
C. Attorney Pacifico Fees.
The plaintiffs retained Attorney Paul Pacifico in the summer of 2003 to take a lead role in the trial. Attorney Pacifico and his firm was paid $123,855.00 for his time, billed at $350.00 per hour, and time billed for “professional assistance” at $40.00 per hour. The court determines that these hourly rates for an experienced trial lawyer and a legal assistant are reasonable and in line with prevailing market rates in this area. See Bristol Technology, Inc. v. Microsoft Corporation, 127 F.Sup.2d 64, 75-76 and n. 15.[1]
Attorney Pacifico billed and was paid for 317.5 hours from the end of August 2003 through early February 2004 when voluminous post-trial papers were submitted. The trial lasted nearly eight weeks. Having presided over the trial and read the papers, the court finds that for the overall amount of work accomplished, these attorney hours are fair and reasonable. However, the court is presented with no evidence about the more than 318 hours of “professional assistance” which was billed and paid. While the court might infer this entry related to a legal assistant or paraprofessional, the bills carry no description of what work was done or when it was done. They contain merely a line item CT Page 2121 multiplying the hours of professional assistance by the $40.00 rate. For instance, the November 19, 2003 bill simply noted under disbursements “Professional Assistance (112 hours @ $40.00/hour) $4,480.00.” The court is unable to make a fee award based on such limited information. Smith v. Snyder, 267 Conn. 456, 479
(2004).
The plaintiffs have contended that fifteen percent of the fees paid for the trial and post-trial briefing were engendered by the CUTPA claim involving the relationship between CSI and Talbot House, and the court agrees that this is as good an estimate as can be made. While the issue might not have taken up quite that much actual trial time, the work of tracing and accounting for funds as well as the difficulties of extracting the information from the books and records, and witnesses, was difficult and justifies a slight upward adjustment. Therefore, the court determines that fifteen percent of Attorney Pacifico’s fees ($16,668.75) is part of an appropriate award.
D. Attorney Akoury Fees.
Attorney Akoury left RBCE some time after June 2003 and agreed with the plaintiffs to try the case for a flat fee of $60,000.00. She was paid this amount plus an additional $7,704.20 for work on the post-trial papers. Assuming that Attorney Akoury worked the same amount of hours on these matters as Attorney Pacifico (and the court has reason to believe that she may have worked more hours) that comes to an average hourly rate of a little over $213.00 per hour. The court determines that, while a higher rate than was previously charged for her services, this is a reasonable rate for an attorney who examined a number of witnesses and gave the closing argument.
The court will allow fifteen percent of Attorney Akoury’s fees ($10,155.63) as an award.
IV. Conclusion
The plaintiff’s motion for an award of attorneys fees is granted to the extent discussed above. The plaintiffs are awarded fees and costs of $39,001.11.
Taggart D. Adams Superior Court Judge
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