Opinion
No. CV-03-0827357 S
January 26, 2004
MEMORANDUM OF DECISION
This commercial loan collection matter came before the court at the Hearings in Damages calendar on December 8, 2003, January 5, 2004, and January 20, 2004 in connection with the plaintiff's request for judgment, including an award of attorneys fees. After considering the plaintiff's affidavits, testimony, and arguments, the court finds that the plaintiff is entitled to judgment, with attorneys fees, as discussed below.
I Background
The plaintiff, Farmington Savings Bank, filed a complaint dated July 2, 2003, in which it alleges that, pursuant to various commercial promissory notes and guaranties, three entities, the defendants Patriot Mechanical Services, LLC, Patriot Fire Protection, LLC, and Construction Management of CT, Inc., are liable to it for the payment of principal, interest, other charges, and attorneys fees. The plaintiff also sued three individuals, based on the execution of guaranties and for avoidance of the transfer of certain real property. All defendants appeared in the action through counsel.
On September 15, 2003, the court entered an order defaulting the defendants for their failures to plead in response to the complaint (#105.10). Two of the individual defendants subsequently filed affidavits of bankruptcy (##108 and 109). On December 8, 2003, the plaintiff withdrew this matter as to the individual defendants (#112).
II Damages CT Page 1997
At the hearing before the court on January 20, 2004, the plaintiff presented the testimony of John S. Driscoll, its senior vice president, and an amended affidavit of debt, dated January 20, 2004, signed by him. Based on the testimony and the amended affidavit of debt, the court finds that the plaintiff has proved damages against the defendants, as follows.
Judgment may enter against Patriot Mechanical Services, LLC in the amount of $454,225.13. In addition, judgment may enter against Patriot Mechanical Services, LLC; Patriot Fire Protection, LLC; and Construction Management of CT, Inc., jointly and severally, in the amount of $504,972.04.
On January 5, 2004, at the Hearings in Damages calendar, the plaintiff advised the court that it was not seeking the per diem amounts set forth in its affidavit of debt.
III Attorneys Fees
As noted, the plaintiff also seeks an attorneys fee award. The commercial promissory notes (see Exhibits C and F, ¶ 5 to the amended affidavit of debt) each provide for the payment of reasonable attorneys fees incurred by the plaintiff in the course of collection.
The plaintiff seeks attorneys fees in the amount of $39,981.00 for work performed beginning on May 27, 2003 and concluding on December 3, 2003, a period of a little over six months. In its Supplemental Affidavit Re Attorneys Fees, the plaintiff asserts that 211 hours were expended in connection with this matter by four attorneys and a law clerk from its counsel's office. It sets forth the hourly billing rates for these individuals as ranging from $125.00 to $215.00. It also states that a substantial amount of time has been spent working with the debtors, including the drafting of additional loan and security documents. Time was also incurred in dealing with garnishees, on the investigation of potential assets to secure, consideration of a competing security interest, and assessing the impact of bankruptcy filings.
"Connecticut follows the `American rule,' a general principle under which, attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception." (Internal quotation marks omitted.) Schoonmaker v. Brunoli, 265 Conn. 210, 268-69, 828 A.2d 64 (2003). Here, as noted, the defendants, pursuant to the commercial promissory notes and the guaranties, contractually agreed to be liable for reasonable attorneys fees.
An attorneys fees applicant bears the burden of proof as to its request. See Jacques All Trade Corp. v. Brown, 57 Conn. App. 189, 199 n. 4, 752 A.2d 1098 (2000). "An award of attorneys fees is not a matter of right. Whether any award is to be made and the amount thereof lie within the discretion of the trial court, which is in the best position to evaluate the particular circumstances of a case." LaMontagne v. Musano, Inc., 61 Conn. App. 60, 63-64, 762 A.2d 508 (2000). "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 . . ." (Internal quotation marks omitted.) Food Studio, Inc. v. Fabiola's, 56 Conn. App. 858, 865, 747 A.2d 7 (2000).
"A court has few duties of a more delicate nature than that of fixing counsel fees." (Internal quotation marks omitted.) Laudano v. New Haven, 58 Conn. App. 819, 822, 755 A.2d 907 (2000). "Rule 1.5(a) of the Rules of Professional Conduct lists the factors that ordinarily determine the reasonableness of an attorneys fee. These factors include the time and labor required, the novelty and difficulty of the questions involved, and the fee customarily charged in the locality for similar legal services." (Footnote omitted.) Sorrentino v. All Seasons Services, Inc., 245 Conn. 756, 775, 717 A.2d 150 (1998). More recently, our Supreme Court emphasized that "we repeatedly have stated that the determination of reasonable attorneys fees is not limited to hours spent times hourly rate. See, e.g., Andrews v. Gorby, 237 Conn. 12, 24, 675 A.2d 449 (1996), citing rule 1.5 and noting that `[t]ime spent is but one factor in determining the reasonableness of an attorneys fee'; Appliances, Inc. v. Yost, 186 Conn. 673, 681, 443 A.2d 486 (1982) (court's general knowledge of value of attorney's services and itemized list of such services were sufficient evidence upon which fee could be determined)." Shapero v. Mercede, 262 Conn. 1, 8, 808 A.2d 666 (2002).
Rule of Professional Conduct 1.5(a) provides:
A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if made known to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained;(5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.
"[T]he initial estimate of a reasonable attorneys fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate . . . The courts may then adjust this lodestar calculation by other factors." (Internal quotation marks and citation omitted.) Laudano v. New Haven, supra, 58 Conn. App. 822-23, quoting Blanchard v. Bergeron, 489 U.S. 87, 94, 109 S.Ct. 939, CT Page 1999 103 L.Ed.2d 67 (1989). "The court has the authority to formulate a fee award so as to ensure that a windfall is avoided." Mulligan v. Rioux, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV87-0336554 (Oct. 10, 1996, Lavine, J.).
"In determining the number of hours reasonably expended, the court must exclude hours that are excessive, redundant or otherwise unnecessary . . . The task of determining a fair fee requires a conscientious and detailed inquiry into the validity of the representations that a certain number of hours were usefully and reasonably expended . . . The court must examine the hours expended by counsel and the value of the work product of the particular expenditures to the client's case. Efforts put into research, briefing and the preparation of a case can expand to fill the time available, and some judgment must be made in the awarding of fees as to diminishing returns from such further efforts . . . In making this examination, the . . . court does not play the role of an uninformed arbiter but may look to its own familiarity with the case and its experience generally as well as to the evidentiary submissions of the parties . . ." (Internal quotation marks omitted and citations omitted.) Ham v. Greene, Superior Court, judicial district of New Haven, Docket No. 322775 (June 12, 2000, Levin, J.) ( 27 Conn. L. Rptr. 512).
"Cases may be overstaffed, and the skill and experience of lawyers vary widely. Counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. In the private sector, `billing judgment' is an important component in fee setting. It is no less important here. Hours that are not properly billed to one's client also are not properly billed to one's adversary . . ." (Italics in original; internal quotation marks omitted.) Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). "It is well recognized that when more lawyers than are necessary are assigned to a case, the level of duplication of effort increases . . ." Gatti v. Community Action Agency of Greene County, Inc., 263 F. Sup.2d 496, 518 (N.D.N.Y. 2003).
"Courts have recognized that in many cases in which prevailing parties seek an award of attorneys fees, it is unrealistic to expect a trial judge to evaluate and rule on every entry in an application . . . For that reason, many courts have endorsed percentage cuts as a practical means of trimming . . . a fee application." (Internal quotation marks omitted and citations omitted.) Sabatini v. Corning-Painted Post Area School District, 190 F. Sup.2d 509, 522 (W.D.N.Y. 2001); see also Gatti v. Community Action Agency of Greene County, Inc., supra, 263 F. Sup.2d 518 (across-the-board reduction in amount of hours, including for vagueness in documentation of certain time entries; cited cases involved cuts of from 10% to 50%). See, for example, Arnone v. Town of Enfield, Superior Court, judicial district of Hartford, Docket No. 96-0558333 S (September 13, 2001, Beach, J.), affirmed in part and reversed in part on other grounds, 79 Conn. App. 501, 831 A.2d 260, cert. denied, 266 Conn. 932 (2003) (applying factors to the lodestar, fee request of $84,125.00 would have been reduced by approximately 40% to $50,000.00; trial court instead awarded the contingency fee of $42,333.00 based on a retainer agreement); Omnipoint Communications, Inc. v. Planning Zoning Commission of Town of Wallingford, 91 F. Sup.2d 497, 500 (D.Conn. 2000) (applying percentage reduction).
With those principles in mind, the court turns to the issues presented by the plaintiff's application for an award of attorneys fees. The court has reviewed the time entries claimed in the plaintiff's Affidavit Re Attorneys Fees and in its Supplemental Affidavit Re Attorneys Fees. As noted, four attorneys and a law clerk worked on the matter. The court finds that the requested hours are excessive. Accordingly, the number of hours of work for which a fee is to be awarded must be reduced.
For example, on several days on which substantial time was incurred, meetings or conferences were attended by the plaintiff's attorneys. Some of these meetings are specifically identified as having been with the plaintiff and/or the borrowers; others are not so identified. For reasons not explained to the court, the two most senior attorneys working on the matter often both attended, resulting in increased fees (these attorneys have billing rates of $210.00 and $215.00 per hour, respectively) for these particular days. See entries for June 10, 2003, July 1, 2003, July 8, 2003, September 2, 2003, November 25, 2003, and December 2, 2003, appended to plaintiff's Affidavit Re Attorneys Fees. In the absence of explanations, these entries appear to represent some overstaffing.
Other entries vaguely allude to another lawsuit. See entries for August 15, 2003 and September 3, 2003.
As noted above, the court has considered the other factors set forth in Rule of Professional Conduct 1.5. This case involves allegations of defaults under various commercial promissory notes and guaranties. The plaintiff has not shown that it presented novel questions or particularly complex legal issues. It did involve multiple parties and several loans. The results obtained were fairly good, in that the plaintiff secured judgments by default against the commercial entities. No judgments were obtained against the individual defendants, who filed for bankruptcy, and against whom the case was withdrawn.
Certain of the factors outlined in Rule 1.5 are not applicable, since the court has no information concerning them or they are not pertinent (preclusion of other employment, time limitations imposed by the client or by the circumstances, and length of the attorney-client relationship). The plaintiff's proposed fee is calculated using hourly billing rates; the court therefore assumes that this was the basis on which its attorneys were retained.
The court also has considered the question of the fee customarily charged for similar services. Here, based on (1) its familiarity with the pleadings, (2) the presentations made at the hearings in damages calendar, (3) its review of the listings in Martindale-Hubbell for plaintiff's law firm's personnel (which was provided with the supplemental affidavit), and (4) its knowledge of the rates for legal services in this geographical area, as well on other Rule 1.5 factors, the court finds that the hourly rates set forth in the plaintiff's affidavits are reasonable rates.
In accordance with the promissory notes and guarantees the plaintiff is entitled to an award of attorneys fees. Taking into account the adjustments discussed above, and applying a percentage reduction, the court finds that $33,983.85 is a fair and reasonable attorneys fee.
CONCLUSION
1. Judgment may enter against Patriot Mechanical Services, LLC in the amount of $454,225.13.
2. In addition, judgment may enter against Patriot Mechanical Services, LLC; Patriot Fire Protection, LLC; and Construction Management of CT, Inc., jointly and severally, in the amount of $504,972.04, plus $33,983.85 for attorneys fees, for a total of $538,955.89.
It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT CT Page 2002