Opinion
No. CV 07 4014607 S
December 1, 2010
MEMORANDUM OF DECISION RE MOTION FOR PUNITIVE DAMAGES AND ATTORNEYS FEES
I BACKGROUND
On October 13, 2010, a jury returned a verdict in favor of the plaintiff, Stanley Kosiorek, Executor, against the defendant, Jacek I. Smigelski, on counts of breach of contract, breach of good faith and fair dealing, breach of fiduciary duty, violation of the Connecticut Unfair Trade Practices Act (CUTPA), and civil conversion. On the CUTPA count, the jury found that the plaintiff is entitled to punitive damages as well as attorneys fees. On the civil conversion count, the jury found that the plaintiff is entitled to interest at the rate of ten (10) percent, and determined that the date from which the interest was to begin as December 26, 2006. Compensatory damages were assessed in the amount of $54,833.33. The court indicated on the verdict form as to damages that if the jury found in favor of the plaintiff on the civil conversion count, any damage award would be tripled.
The court indicated to the jury that the determination of punitive damages, attorneys fees, as well as the calculation for any interest would be performed by the court post-judgment.
On October 14, 2010, the court entered orders in accordance with the jury's verdict as follows:
The defendant had filed a motion for directed verdict as to all counts, which the court heard argument on the motion and reserved decision. In the order of October 14, 2010, the court reiterated its ruling that the motion was denied as to all counts.
On October 20, 2010, the plaintiff filed a motion for punitive damages and attorneys fees as provided under the CUTPA claim, together with a memorandum in support of the motion, and an affidavit of plaintiff's counsel with supporting data regarding the claim for attorneys fees. The plaintiff is claiming CUTPA punitive damages against the defendant, Jacek Smigelski, in the amount of $377,937, and attorneys fees and expenses in the amount of $71,696.09. The defendant filed an objection to the plaintiff's motion for CUTPA damages on October 27, 2010, and on November 5, 2010, the plaintiff filed a supplemental memorandum in support of his motion for punitive, damages and attorneys fees. The matter was heard by the court on November 8, 2010.
In addition to the motion for punitive damages and attorneys fees, the plaintiff also filed a motion to modify prejudgment remedy, #195, which the court will address separately. The defendant filed a motion to set aside verdict and for judgment in accordance with the defendant's motion for a directed verdict, #196, which the court denied at the hearing on November 8, 2010.
II DISCUSSION A. Punitive Damages
The plaintiff seeks a punitive damage award of $377,937 under the CUTPA claim, which amounts to five times the total amount of the verdict in his favor of $75,587.74. He argues that the conduct of the defendant was motivated by greed and arrogance, and his acts and testimony during the trial amounted to "utter disregard for the judicial system." The plaintiff asks the court to also consider the defendant's repeated conduct of misrepresentations made in other forums and settings prior to this action, arguing that despite previous attorney disciplinary actions, his wrongful conduct continues.
In the plaintiff's supplemental memorandum in support of motion for punitive damages, he cites to a complaint filed by the defendant on October 22, 2010, for a new trial in the matter of Jacek I. Smigelski v. Mark A. Dubois, Chief Disciplinary Counsel. The plaintiff asserts that in the petition for a new trial, the defendant continues to make reckless and untruthful statements. "While the merits of the allegations of this new lawsuit are not before this court, the defendant's continuing course of conduct to materially misstate and misrepresent to various tribunals continues. This conduct deserves to be significantly punished which is the whole point of the punitive damage award in the first place." Plaintiff's Supplemental Memorandum in Support of Motion for Punitive Damages.
Under CUTPA, General Statutes § 42-110g(a) provides in relevant part that "[t]he court may, in its discretion, award punitive damages . . ." Under CUTPA, the award and the amount of punitive damages are discretionary with the court. Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987). "In order to award punitive or exemplary damages evidence must reveal a reckless indifference to the rights of others or an intentional or wanton violation of those rights . . . In fact, the flavor of the basic requirement to justify an award of punitive damage is described in terms of wanton and malicious injury, evil motive and violence." Id., 622. "The legislature departed from the narrow scope of common law punitive damages, however, when it adopted § 42-110g(a) of CUTPA, which provides that the court may, in its discretion, award punitive damages . . . as it deems necessary or proper. See Bailey Employment System, Inc. v. Hahn, 545 F.Sup. 62, 72 (D.Conn. 1982). This statutory provision allows for punitive damages based on a theory of deterrence, whereas the common law premise of such an award is compensation." (Internal quotations omitted.) Lenz v. CNA Assurance Company, 42 Conn.Sup. 514, 515, 630 A.2d 1082 [ 9 Conn. L. Rptr. 87] (1994).
Although the law is not well developed as to damages under CUTPA, a basic criterion for such an award is evidence revealing "a reckless indifference to the rights of others or an intentional and wanton violation of those rights." Whitaker v. Taylor, 99 Conn.App. 719, 733, 916 A.2d 834 (2007).
The litigation arose "out of a civil lawsuit, a probate matter, and a real estate closing handled by the defendant, [an attorney,] for the Kosiorek family . . . After concluding certain matters in which [the defendant] represented [the plaintiff,] [the defendant] paid himself a fee out of estate funds that he was holding. The Plainville Probate Court thereafter determined that the fee was excessive and that a lesser amount was allowable out of the estate funds for the work done by the [defendant.] [The defendant] nonetheless took the position that he had charged and paid himself a reasonable amount pursuant to a valid fee agreement. He refused to acquiesce in the finding of the Probate Court by adjusting his fee and refunding the difference." Disciplinary Counsel v. Smigelski, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 08 4019323 (August 31, 2009).
The defendant's conduct was found to be in violation of CUTPA, which would allow the court to award punitive damages in its discretion. The court finds that the defendant's conduct reflects a reckless indifference to the rights of the plaintiffs, and an intentional violation of their rights justifying an award of punitive damages. There is no question that the conduct by the defendant is offensive and would qualify for an award of punitive damages. The defendant has been disciplined for his conduct, resulting in the suspension of his license to practice law. Absent the jury's findings on the count of civil conversion which provides for treble damages as well as the plaintiff's entitlement to attorneys fees under CUTPA, the court would surely make a specific award of punitive damages. However, in light of the reasons set forth, the court will not award any further punitive damages for the CUTPA claim.
B. Attorneys Fees
Although an award of punitive damages under the CUTPA claim is not warranted for the reasons set forth herein, attorneys fees and costs may be awarded to the prevailing plaintiff in a CUTPA case subject to the sound discretion of the court. See, MedValUSA Health Programs, Inc. v. Member Works, Inc., 109 Conn.App. 308, 315-16, 951 A.2d 26 (2008); Gargano v. Heyman, supra, 203 Conn. 622 ("[a]warding punitive damages and attorneys fees under CUTPA is discretionary"). "The plaintiff who establishes CUTPA liability has access to a remedy far more comprehensive than the simple damages recoverable under common law. The ability to recover both attorneys fees; General Statutes § 42-101g(d); and punitive damages; General Statutes § 42-101g(a); enriches the private CUTPA remedy and serves to encourage private CUTPA litigation." Hinchliffe v. American Motors Corp., 184 Conn. 607, 614, 440 A.2d 810 (1981). The "entitlement to recover attorneys fees stands on a different footing" than the availability of punitive damages in a CUTPA case. New England Custom Concrete, LLC v. Carbone, 102 Conn.App. 652, 667, 927 A.2d 333 (2007) (request for punitive damages in connection with a CUTPA claim denied because the wrongful conduct fell short of the standard but case remanded to the trial court for a hearing on the appropriateness of awarding attorneys fees).
"General Statutes § 42-110g(d) provides in relevant part that, in any action in which a person alleges damages resulting from an unfair trade practice prohibited by § 42-110b of CUTPA, 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 the recovery . . ." Smith v. Snyder, 267 Conn. 456, 470, 839 A.2d 589 (2004). "It is well established that a trial court calculating a reasonable attorneys fee makes its determination while considering the factors set forth under rule 1.5(a) of the Rules of Professional Conduct . . . A court utilizing the factors of rule 1.5(a) considers, inter alia, the time and labor spent by the attorneys, the novelty and complexity of the legal issues, fees customarily charged in the same locality for similar services, the lawyer's experience and ability, relevant time limitations, the magnitude of the case and the results obtained, the nature and length of the lawyer-client relationship, and whether the fee is fixed or contingent." (Citations omitted; internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 259, 828 A.2d 64 (2003).
The plaintiff has moved for an award of attorneys fees and costs for the work performed in this matter. In support of the motion, the plaintiff's counsel has submitted an affidavit of attorneys fees outlining his background and experience, a curriculum vitae, and copies of invoices sent to the plaintiff detailing a description of services rendered and costs. He seeks an award of fees for approximately 220 hours at the rate of $300 per hour for an award of $68,011.50, plus costs and expenses of $3,684.59, for a total award of $71,696.09.
In carefully reviewing the invoices, it would appear that some of the legal work was related to the probate court proceeding, attorney grievance proceeding against the defendant, as well as the appeal taken by the defendant after the court's ruling in the grievance proceeding. Attorneys fees related to the underlying issues of the CUTPA claim may be awarded even if they are not expressly labeled as work on the CUTPA claim. Heller v. D.W. Fish Realty Co., 93 Conn.App. 727, 734-35, 890 A.2d 113 (2006). In Heller, the plaintiffs could not "distinguish" the amount of attorneys fees related to their CUTPA claim alone from those related to their breach of contract and negligence claims. The court held that "[General Statutes] § 42-101g(d) encompasses claims related to the prosecution of a CUTPA claim . . . not only [the] one claim explicitly labeled as a CUTPA claim." (Citation omitted; internal quotation marks omitted.) Id., 735. It further found that since all the claims upon which the plaintiffs prevailed depended on the same facts, the plaintiffs were not required to apportion their attorneys fees among their various claims.
The plaintiffs claims in this matter depend on the same facts and circumstances and arise out of the same conduct. Admittedly, the grievance proceeding also related to the same facts and circumstances. Although there were three separate proceedings, the attorneys fees all arise out of the same underlying conduct by the defendant, and all were incurred by the plaintiff in seeking redress for this wrongful conduct. The court finds that an award of reasonable costs and attorneys fees under § 42-110g(d) is appropriate in the present case. Considering the relevant Rule 1.5 factors, and for all reasons previously noted, the court finds that the plaintiff is entitled to attorneys fees in the amount of $68,011.50 plus costs in the amount of $3,684.59, for a total award of $71,696.09.
The court has carefully reviewed the invoices submitted by plaintiff's counsel. Although there is reference to fees and costs incurred in the probate proceedings and references to the attorney grievance proceedings, it would appear that these were all incurred within the scope of the representation of the plaintiff in this present action.
III CONCLUSION
Accordingly, the court finds the plaintiff is not entitled to punitive damages and is entitled to attorneys fees and costs in the amount of $71,696.09. Together with the damage award of $226,762.20, the court orders that judgment enter in the total amount of $298,458.29.