Opinion
No. CV-10-5007213-S
June 1, 2011
JUDGMENT
The plaintiff, Fife's Landscaping, LLC ("plaintiff") brought suit, alleging that defendants Warren's Lawn Maintenance, LLC and John Warren III ("the defendants") were indebted to the plaintiff pursuant to a promissory note that was executed on December 24, 2002. The plaintiff filed an application for prejudgment remedy, together with a proposed writ, summons and complaint, on May 11, 2010, and made service on the defendants on May 15, 2010.
On April 25, 2011, the plaintiff moved for summary judgment as to liability only; that motion was granted on April 28, 2011. The plaintiff then moved for judgment on May 2, 2011 (#135). The plaintiff seeks to recover outstanding principal and interest pursuant to the terms of an underlying promissory note.
In addition to principal and interest, and pursuant to the promissory note, the plaintiff seeks late fees, attorneys fees, and all other costs of suit and collection. Finally, the plaintiff notes that it filed an offer of compromise on January 18, 2011, which was not accepted. Therefore, the plaintiff seeks additional interest at the rate of eight (8%) percent per annum, computed from the date of filing the complaint.
In summary, the plaintiff seeks a total of $83,154.23, a figure that includes principal, interest and late fees, attorneys fees and expenses, and additional interest pursuant to the offer of compromise.
The plaintiff accompanied its motion with an affidavit of debt, claiming that the principal owed equals $50,454.12; interest on the note through April 26, 2011, equals $12,052.27; and late charges equal $4,528.10, all for a total of $67,034.49. The affidavit in support of its claim for attorneys fees seeks a total of $12,079.30. The plaintiff includes in that figure $10,887.50 for attorneys fees plus $1,191.80 for the costs of the litigation.
CT Page 12600
DISCUSSION
The court will review, seriatim, the various amounts sought in the motion for judgment.1. Principal Balance. The complaint and the affidavit of debt filed with the motion for judgment show the principal balance on the promissory note to be $50,454.12.
2. Interest. The promissory note provides that the borrower agreed to pay to the lender monthly interest at the rate of three (3%) percent per annum on the principal amount of the note. The affidavit of debt seeks interest through April 26, 2011, in the amount of $12,052.27.
The affidavit does not reveal how the plaintiff computed the latter figure. The plaintiff's figure does not appear to be justified, based upon the terms of the promissory note. Therefore, the motion for a judgment that awards interest pursuant to the promissory note is denied without prejudice. The plaintiff is invited to submit an expanded affidavit of debt that clearly illustrates the method by which it computed interest owed pursuant to the promissory note. Any such affidavit will be filed no later than two weeks from the date of this ruling.
3. Late Charges. The plaintiff's complaint alleged that no payments were made on or after the date that the note was due, March 1, 2008. The promissory note provides that the borrower agreed to pay late charges "not exceeding five (5%) percent of any installment when paid more than fifteen (15) days after the due date." The affidavit of debt seeks late charges in the amount of $4,528.10.
"A lender may collect late charges for payments not paid by the due date prior to acceleration of the note . . . Late charges no longer are `due' after the lender has instituted an action on the note." (Citation omitted.) McKeever v. Fiore, 78 Conn.App. 783, 794, 829 A.2d 846 (2003).
The plaintiff's affidavit does not reveal how it calculated the late charge figure that it now seeks. In the absence of such information, the court cannot be confident that the late charges were calculated in accordance with the rule set forth in McKeever. The motion for a judgment that awards late charges is denied without prejudice. The plaintiff is invited to submit an expanded affidavit of debt that illustrates a late charge calculation that conforms to the rule in McKeever. Any such affidavit will be filed no later than two weeks from the date of this ruling.
4. Attorneys Fees and Costs. The plaintiff submitted an Affidavit in Support of Attorneys Fees, seeking attorneys fees in the amount of $10,887.50 and costs in the amount of $1,191.80, for a total award of $12,079.30.
Normally, parties hear their own costs of litigation "except where the legislature has dictated otherwise by way of statute." (Internal quotation marks omitted.) Traystman, Coric Keramides, P.C. v. Daigle, 282 Conn. 418, 429, 922 A.2d 1056 (2007). However, in this case the claim for attorneys fees is not based on a statute but rather on a contractual agreement. The promissory note upon which this case is based provides: "if the [plaintiff] sues to collect this note, [defendants] will pay the [plaintiff's] cost of such suit, including reasonable attorneys fees."
"[W]hen the terms of a promissory note provide for the payment of attorneys fees, they are recoverable . . . Where a promissory note expressly provides for the recovery of reasonable attorneys fees, an award under such a clause requires an evidentiary showing of reasonableness . . . Our cases require an evidentiary showing of reasonableness where recovery is sought under a contract clause which provides for payment of reasonable attorneys fees . . .
"Courts have a general knowledge of what would be a reasonable attorneys fee for services which are fairly stated and described . . . 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 . . . The court is in a position to evaluate the complexity of the issues presented and the skill with which counsel had dealt with these issues . . . 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 . . . [P]roof of the expenses paid or incurred affords some evidence of the value of the services, and if unreasonableness in amount does not appear from other evidence or through application of the trier's general knowledge of the subject matter, its reasonableness will be presumed." (Citations omitted; internal quotation marks omitted.) Pereira v. DeFina, Superior Court, judicial district of Danbury, Docket No. CV 03 08051 (June 20, 1994, McGrath, J.).
The court has considered the plaintiff's affidavit in support of attorneys fees. The court has also considered the nature of the proceedings, the complexity of the issues presented, and the skill with which the issues were addressed. In light of all of the foregoing factors, the court finds attorneys fees in the amount of $8,000 to be reasonable. See Smith v. Snyder, 267 Conn. 456, 480, 839 A.2d 589 (2004).
5. Costs. The plaintiff has included a request for an order of costs in its Affidavit in Support of Attorneys Fees. It is not clear why the plaintiff has taken this approach. The Practice Book provides that costs shall be sought pursuant to a written bill of costs. Practice Book § 18-5(a). The plaintiff has failed, to this point, to comply with the Practice Book requirements. Therefore, no costs are awarded at this time. See Traystman, Coric Keramides, P.C. v. Daigle, supra, 282 Conn. 429-30.
6. Offer of Compromise. The plaintiff filed an offer of compromise on January 18, 2011, offering to stipulate to a judgment in favor of the plaintiff in the amount of $50,000. The plaintiff now seeks additional interest of eight (8%) percent per annum pursuant to General Statutes § 52-192a, computed from the date of the filing of the complaint.
General Statutes § 52-192a(b) "requires a trial court to award interest to the prevailing plaintiff from the date of the filing of a complaint to the date of judgment whenever: (1) a plaintiff files a valid offer of [compromise] within eighteen months of the filing of the complaint in a civil complaint for money damages; (2) the defendant rejects the offer of [compromise]; and (3) the plaintiff ultimately recovers an amount greater than or equal to the offer of [compromise] . . . The purpose of § 52-192a is to encourage pretrial settlements by penalizing a party that fails to accept a reasonable offer of settlement in any civil action based upon contract or seeking the recovery of money damages." (Citation omitted; internal quotation marks omitted.) Donaroma v. Home Sweet Home Realty, Superior Court, judicial district of New Britain, Docket No. CV 07 4014589 (March 25, 2009, Tanzer J.).
"After trial the court shall examine the record to determine whether the plaintiff made an offer of compromise which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain specified in the plaintiff's offer of compromise, the court shall add to the amount so recovered eight per cent annual interest on said amount . . . The interest shall be computed from the date the complaint in the civil action . . . was filed with the court if the offer of compromise was filed not later than eighteen months from the filing of such complaint or application." General Statutes § 52-192a(c).
"[T]he term `after trial' in [§ 52-192a] means a `final judgment' . . ." Tureck v. George, 44 Conn.App. 154, 162, 687 A.2d 1309, cert. denied, 240 Conn. 914, 691 A.2d 1080 (1997). An entry of summary judgment as to liability only, however, is not a final judgment. Id. Here, the plaintiff sought summary judgment as to liability only (#128), and that motion was granted (#128.01). Therefore, the plaintiff's offer of compromise will not support its claim for interest pursuant to General Statutes § 52-192a.
In Tureck v. George, supra, 44 Conn.App. 162, the court interpreted "after trial" as used in General Statutes § 52-192a(b), which is now General Statutes § 52-192a(c). See Public Acts 2005, No. 05-275, § 4, redesignating existing subsection (b) as subsection (c).
CONCLUSION
The court finds that the principal balance owed is $50,454.12. The court awards attorneys fees in the amount of $8,000. The plaintiff's motion for judgment is otherwise denied. Judgment will enter in the amount of $58,454.12.
So ordered.