Opinion
CV176028727S
01-30-2018
Joseph KOLASHUK PPA Danielle Kolashuk v. Kyle HATCH
UNPUBLISHED OPINION
OPINION
Calmar, J.
The issue before the court is the determination of the award of attorneys fee to the plaintiff’s counsel for the defense counsel’s failure to produce cell phone records pursuant to a court order. On September 1, 2017, the Court entered an order awarding sanctions to the plaintiff’s counsel in the amount of $2,500 and invited the plaintiff’s counsel to submit an accounting of attorneys fees in its attempt to obtain relevant cell phone records that the defense counsel indicated were in his possession. Kolashuk v. Hatch, Superior Court, judicial district of New London, Docket No. CV-17-6028727-S (September 1, 2017, Bates, J.).
The plaintiff’s counsel had previously done so, on August 10, 2017, by submitting copies of the amount billed to the plaintiff and a copy of an unsigned plaintiff’s counsel retainer agreement (# 147). On August 17, 2017, the defense counsel objected, arguing the submission was not allowed under the Practice Book, duplicative, and unreasonable (# 149). On August 22, 2017, the plaintiff’s counsel filed a reply, accompanied by an affidavit from the plaintiff’s counsel (# 153). On September 26, 2017, the plaintiff’s counsel resubmitted its request with the same exhibits from its previous request (# 169). On November 22, 2017, the Court held a hearing on the determination of the attorneys fee. The defense counsel is appealing the award of sanctions.
Orders disciplining attorneys are not subject to an automatic stay, pending appeal. Disciplinary Counsel v. Snaider, 149 Conn.App. 738, 741 n.2, 90 A.3d 286 (2014). " [A] court may, either under its inherent power to impose sanctions in order to compel observance of its rules and orders, or under the provisions of [Practice Book] § 13-14, impose sanctions ... The decision to enter sanctions ... and, if so, what sanction or sanctions to impose, is a matter within the sound discretion of the trial court." (Citation omitted; internal quotation marks omitted.) D’Ascanio v. Toyota Industries Corp., 309 Conn. 663, 671, 72 A.3d 1019 (2013). " [T]o support an award of attorneys fees, there must be a clearly stated and described factual predicate for the fees sought, apart from the trial court’s general knowledge of what constitutes a reasonable fee ... [C]ase law demonstrates that a threshold evidentiary showing is a prerequisite to an award of attorneys fees." Smith v. Snyder, 267 Conn. 456, 477, 839 A.2d 589 (2004). " The burden of showing reasonableness rests on the party requesting the fees, and there is an undisputed requirement that the reasonableness of attorneys fees and costs must be proven by an appropriate evidentiary showing ... That [showing] must include a statement of the fees requested and a description of services rendered." (Internal quotation marks omitted.) William Raveis Real Estate, Inc. v. Zajaczkowski, 172 Conn.App. 405, 423, 160 A.3d 363, cert. denied, 326 Conn. 906, 163 A.3d 1205 (2017). " [N]o award for an attorneys fee may be made when the evidence is insufficient." (Internal quotation marks omitted.) Smith v. Snyder, supra, 267 Conn. 472. Nevertheless, a party’s brief that itemizes the attorney’s services is sufficient evidence. Appliances, Inc. v. Yost, 186 Conn. 673, 681, 443 A.2d 486 (1982).
" [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 [outlined in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974) ]." (Internal quotation marks omitted.) Whitney v. Scott Associates, Inc., 164 Conn.App. 420, 435, 137 A.3d 866 (2016). " That list of factors is not, however, exclusive. The court may assess the reasonableness of the fees requested using any number of factors ..." (Internal quotation marks omitted.) Krack v. Action Motors Corp., 87 Conn.App. 687, 695, 867 A.2d 86, cert. denied, 273 Conn. 926, 871 A.2d 1031 (2005).
" The Johnson 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, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client of 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." (Internal quotation marks omitted.) Perez v. D & L Tractor Trailer School, 117 Conn.App. 680, 705-06, 981 A.2d 497 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010).
In the present case, after reviewing the evidence submitted by the plaintiff, the plaintiff’s request for fees in the amount of $40,800 together with costs of $477.26 and the arguments presented at the evidentiary hearing, and based on the court’s general knowledge of what constitutes a reasonable fee; see Smith v. Snyder, supra, 267 Conn. 472; the court concludes that an attorneys fee in the amount of $5000 is reasonable. Based on the plaintiff’s counsel’s records, only attorneys Robert Reardon, Jr. and Matthew Zucker sought the cell phone records. Moreover, only part of their time spent in this matter involved attempting to collect those records. Attorney Reardon spent 6 hours and 45 minutes of office time at $600 per hour and 6 hours and 30 minutes of court time at $750 per hour attempting to collect the cell phone records. Attorney Zucker spent 2 hours and 15 minutes of office time at $300 per hour to collect the cell phone records. Multiplying the time spent on the matter by the hourly rates equals $9600. Nevertheless, such an award, on top of the already ordered $2500 would, in the court’s general knowledge, be unreasonable and excessive. See D’Ascanio v. Toyota Industries Corp., supra, 309 Conn. 671 (determination of sanctions amount within discretion of trial court). " The process of civil discovery is not supposed to be a cat and mouse game ..." Kolashuk v. Hatch, supra, Superior Court, Docket No. CV-17-6028727-S. The amount of $5,000 as an attorneys fee is an appropriate and reasonable award for the defense counsel’s violations.
No affidavit of costs was provided to the court.
Therefore, the court awards $5000 in an attorneys fee to plaintiff’s counsel to be paid by defense counsel.