Opinion
No. CV 00-0073297
November 16, 2004
MEMORANDUM OF DECISION RE PLAINTIFFS' MOTION FOR AWARD OF ATTORNEYS FEES (#145)
Introduction
In this action the Plaintiffs allege that they suffered damages as a result of the Defendants' representation of them in the purchase of their home. The Defendants are a real estate broker and its licensed salesperson. The complaint alleges, in separate counts, that the Defendants violated the Connecticut Unfair Trade Practices Act (CUTPA); breached their contract with the Plaintiffs; and that the Defendants were negligent. The case was tried to a jury and a verdict was returned in favor of the Plaintiffs on all counts on February 11, 2004. The jury awarded the Plaintiffs $18,500 in economic damages as to their claims and $25,000 in non-economic damages as to the negligence claim. The jury did not find that the Defendants' acts or omissions were done in a reckless or callous disregard of, or indifference to, the rights of the Plaintiffs. The Defendants moved that the verdict be set aside and that judgment be entered in favor of the Defendants. That motion was denied on June 29, 2004.
Before the court now is the Plaintiffs' Motion for Award of Attorneys Fees dated March 8, 2004. In that Motion the Plaintiff's request $48,017.17 in fees and expenses. Attached to the motion is a copy of the retainer agreement between the Plaintiffs and their counsel, which provides for a fee of the greater of one-third of the recovery or an amount representing the number of hours expended times the attorney's hourly rate, and the attorney's time records. On June 28, 2004 the court ordered that: "The Plaintiffs' Motion shall be set for an evidentiary hearing. At that time the Plaintiffs shall be given an opportunity to submit evidence in support of their motion including evidence as to the portion of the fees requested specifically related to the CUTPA claims as well as evidence related to the criteria set forth in Steiger v. J.S. Builders, Inc., 39 Conn.App. 32, 38 (1995). See also, Jacques All Trades Corp. v. Brown, 57 Conn.App. 189, 200 (2000)." The hearing on the Plaintiffs' motion was held on July 22, 2004. At that time the Plaintiffs declined to offer any evidence regarding the criteria referenced by the court in its order.
Discussion
CUTPA provides for the award of attorneys fees in General Statutes § 42-110g(d). That statute states: "In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys fees based on the work reasonably performed by an attorney and not on the amount of recovery."
"`Awarding . . . attorneys fees under CUTPA is discretionary; General Statutes § 42-110g(a) and (d) . . . and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done.' Neilsen v. Wisniewski, 32 Conn.App. 133, 138, 628 A.2d 25 (1993). `Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice . . . State v. Polanco, 26 Conn.App. 33, 41, 597 A.2d 830 (1991). The salient inquiry is whether the court could have reasonably concluded as it did. Yale University School of Medicine v. McCarthy, [ 26 Conn.App. 497, 500-01, 602 A.2d 1040 (1992)]. It goes without saying that the term abuse of discretion does not imply a bad motive or wrong purpose but merely means that the ruling appears to have been made on untenable grounds. State v. Schroff, 198 Conn. 405, 413, 503 A.2d 167 (1986). In determining whether there has been an abuse of discretion, much depends upon the circumstances of each case. Id.' (Internal quotation marks omitted.) State v. Arbour, 29 Conn.App. 744, 748, 618 A.2d 60 (1992)." Thames River Recycling v. Gallo, 50 Conn.App. 767, 800-01 (1998).
"The policy behind CUTPA is to encourage litigants to act as private attorneys general and to bring actions for unfair or deceptive trade practices . . . To effectuate that policy, the legislature encourages attorneys to accept and litigate CUTPA cases by providing, in General Statutes § 42-110g(d), for awards of attorneys fees and costs." (Citations omitted.) Hernandez v. Monterey Village Association Limited Partnership, 17 Conn.App. 421, 425 (1989). The determination of whether, however, a plaintiff should be awarded attorneys fees and costs is entrusted to the trial court's sound discretion. Id., at 426.
In Jacques All Trades Corp. v. Brown, 57 Conn.App. 189, 200 (2000) the court also noted that the CUTPA attorneys fees statute "relates solely to claims related to the prosecution of a CUTPA claim and not to all claims. In the absence of abuse of discretion, the court can award attorneys fees under CUTPA only for those expenses that were related to the prosecution of a CUTPA claim." In Porricelli v. Scherban, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 910284991S (Rush, J., September 4, 1998) the court denied a request for attorneys fees where it was unable to determine what fees may have been occasioned by the CUTPA claim and what fees were occasioned by the many other issues involved in the case.
Once the court has determined that an award of fees is appropriate it must then determine the amount. In Steiger v. J.S. Builders, Inc., 39 Conn.App. 32 (1995) the court discussed the factors to be considered in determining the amount of attorneys fees to be awarded. It adopted the twelve factors set forth by the Fifth Circuit Court of Appeals in Johnson v. Georgia Highway Express, Inc., 488 F.2d 715. The Steiger court held: "In Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d 715, the question before the Fifth Circuit Court of Appeals concerned the adequacy of attorneys fees awarded by the District Court in an across-the-board action to remedy employment discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. The Circuit Court of Appeals set out twelve guidelines for the District Court to consider on remand in setting reasonable attorneys fees: (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; (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. Id., 717-19 . . . The guidelines set forth in Johnson for calculating reasonable attorneys fees are appropriate in CUTPA litigation because, similar to Title VII, CUTPA seeks to create a climate in which private litigants help to enforce the ban on unfair or deceptive trade practices or acts. Hinchcliffe v. American Motors Corp., 184 Conn. 607, 618, 440 A.2d 810 (1981)." (Internal quotation marks omitted.) Steiger v. J.S. Builders, Inc., 39 Conn.App. 32, 38-9 (1995). The court need not detail its consideration of each of the factors in Johnson but consider "the full panoply of factors." Virginia Riggio v. Orkin Exterminating Co., Inc., 58 Conn.App. 309, 318 (2000). Nor is a separate evidentiary hearing on the reasonableness of the attorneys fees requested mandatory. Id., at 319.
In Blanchard v. Bergeron, 489 U.S. 87 (1989) the Court noted that: " Hensley v. Eckerhart, 461 U.S. 424 (1983), directed lower courts to make an initial estimate of reasonable attorneys fees by applying prevailing billing rates to the hours reasonably expended on successful claims. And we have said repeatedly that `[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.' Blum v. Stenson, 465 U.S. 886, 888 (1984). The courts may then adjust this lodestar calculation by other factors . . . [W]e have adopted the lodestar approach as the centerpiece of attorneys fee awards. The Johnson factors may be relevant in adjusting the lodestar amount, but no one factor is a substitute for multiplying reasonable billing rates by a reasonable estimation of the number of hours expended on the litigation."
As noted above, the decision of the court on the motion for attorneys fees requires the exercise of the court's discretion. The Court in Hammerberg v. Leinert, 132 Conn. 596, 604-05 (1946) discussed what that entails in the context of the discretion to issue an injunction. "The determinative principle has been well stated by the California court in these words: Discretion means `a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. In a plain case this discretion has no office to perform, and its exercise is limited to doubtful cases, where an impartial mind hesitates. If it be doubted whether the excuse offered is sufficient or not, or whether the defense set up is with or without merit in foro legis, when examined under those rules of law by which Judges are guided to a conclusion, the judgment of the Court below will not be disturbed. If, on the contrary, we are satisfied beyond a reasonable doubt that the Court below has come to an erroneous conclusion, the party complaining of the error is as much entitled to a reversal in a case like the present as in any other.' Bailey v. Taaffe, 29 Cal. 422, 424; see also Moody v. Reichow, 38 Wash. 303, 308, 80 P. 461; Bowers, Judicial Discretion of Trial Courts, p. 16; Taylor v. Florida East Coast Ry. Co., 54 Fla. 635, 642, 45 So. 574; People v. Gage, 188 Mich. 635, 641, 155 N.W. 464; Butler Co. v. Strickland-Tillman Hardware Co., 15 Ga.App. 193, 194, 82 S.E. 815, Matter of Bond, 251 App.Div. 651, 654, 297 N.Y.S. 493; Sanders v. Ryan, 112 Ind.App. 470, 478, 41 N.E.2d 833; 5 C.J.S. 488; 28 Am. Jur. 501."
The court must apply the principles cited above to the circumstances of this case. The Defendants argue that the court should exercise its discretion to deny fees because the jury found that the Defendants' acts or omissions were not "done in a reckless or callous disregard of, or indifference to, the rights of the Plaintiffs, Christine and Richard Heller." Although this is not decisive, the court notes that the actions of the Defendants, as found by the jury, were not so egregious that an award of punitive damages was found necessary to vindicate the Plaintiffs' rights. The jury also found for the Plaintiffs on all counts. The verdict on the CUTPA count added nothing to the Plaintiffs' award of damages other than an opportunity to pursue attorneys fees.
As to the amount of any fees to be awarded, the Defendants specifically do not contest either the rate charged by Plaintiffs' counsel or the amount of time expended by him on the case. The Plaintiffs claim, based on the decision in Blanchard, that only if the lodestar is contested does the court consider the twelve factors adopted in Steiger. Since the Defendants have not contested the lodestar amount and the Plaintiffs have not asked that that amount be enhanced, the court agrees with the Plaintiffs that it need not consider the Johnson factors. However the Defendants argue that the Plaintiffs have failed to differentiate between the fees incurred in prosecuting their CUTPA claim and the fees incurred for their negligence and breach of contract claims. Despite the court's request that they do so, the Plaintiffs did not attempt to distinguish which parts of their fee request related to the CUTPA claim. The Plaintiffs presented no evidence as to the amount of attorney time spent in this case related to the CUTPA claim, or any mechanism on which to make a reasonable estimate of such. In the absence of such information, the court is left with its knowledge of the case gleaned from a review of the file and presiding at trial, but that alone is insufficient to make such a determination. Reviewing the case as a whole, the court cannot say that the CUTPA claim added anything to the ability of the Plaintiffs to obtain full relief for their injury. As the jury found, the Plaintiffs were entitled to damages under their negligence and contract claims and, in the absence of any finding supporting a claim for punitive damages, were not entitled to any additional damages on their CUTPA claim. Thus the principle claims in this case were the negligence and breach of contract claims. Courts have denied fees in similar cases where the defendant was found to have breached a contract or committed a per se violation of CUTPA but his conduct was not found to have been egregious nor outrageous nor the result of reckless or wantoned disregard of the plaintiffs' rights. Walker v. Winston, Superior Court, judicial district of New Haven at New Haven, Docket No. CV99 0429373S, 34 Conn. L. Rptr. 16 (Gilardi, J., January 22, 2003); Bray v. Founders C.D., LLC, Superior Court, judicial district of Hartford at Hartford, Docket No. CV-03-0827961 S (Shapiro, J., June 22, 2004). In addition, much work was expended on the motion for summary judgment regarding the issue of duty which arguably related to the negligence claim alone.
Conclusion CT Page 17265
In exercising its discretion to award attorneys fees the court must have adequate information on which to calculate such an award. It cannot be based on guesswork, speculation or arbitrary percentages. In the absence of any evidence as to the amount of fees, either in time or amount, generated from work on the CUTPA claim, the fact that such a claim was not the principle claim of this case, and the jury's finding that the Defendants' conduct was not such that additional damages other than those available pursuant to the negligence or contract claim were warranted, the court declines to exercise its discretion to award attorneys fees.
The Motion for Award of Attorneys Fees is denied.
Scholl, J.