Opinion
FSTCV095011618S
05-25-2016
Law Offices of Frank N. Peluso, P.C. v. Jerry P. Cotrone
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Donna Nelson Heller, J.
The plaintiff Law Offices of Frank N. Peluso, P.C. (the Peluso firm) commenced this action, returnable May 26, 2009, against the defendant Jerry P. Cotrone (Mr. Cotrone) to recover unpaid legal fees allegedly owed by Mr. Cotrone to the Peluso firm. In its three-count amended complaint (#113.00; #114.00), filed July 20, 2010, the Peluso firm asserted claims for breach of contract for Mr. Cotrone's failure to pay the balance due of $36,119.06 for the legal services that the Peluso firm provided to him (first count); quantum meruit for Mr. Cotrone's retaining the benefit of $48,119.06 in legal services provided by the Peluso firm without paying the reasonable value therefor (second count); and unjust enrichment in the amount of $36,119.06 for Mr. Cotrone's retaining the benefit of $48,119.06 in legal services provided by the Peluso firm while only paying a total of $12,000 for such services (third count).
On September 22, 2010, Mr. Cotrone filed an answer to the complaint and asserted three special defenses and a counterclaim (#118.00). In his special defenses, Mr. Cotrone alleged that no written contract existed between the parties; the Peluso firm's claims violate Rule 1.5(b) and (c) of the Rules of Professional Conduct; and the Peluso firm led Mr. Cotrone to believe that it was representing him on a contingent fee basis. The Peluso firm replied to the special defenses, denying each of them in its entirety, on April 2, 2015 (#129.00).
Mr. Cotrone filed an amended counterclaim on October 15, 2013 (#123.00). Mr. Cotrone contended in the amended counterclaim that the Peluso firm wrongfully obtained or retained the total amount of $18,268.72 from him in violation of Rule 1.5 of the Rules of Professional Conduct because the Peluso firm did not provide a written retainer agreement regarding legal fees and never gave him an accounting of those funds. On March 27, 2015, the Peluso firm filed an answer with special defenses to the amended counterclaim (#126.00), asserting as special defenses that no retainer agreement was necessary under the circumstances; that the counterclaim failed by way of laches; that the amount that Mr. Cotrone claimed to have paid to the Peluso firm was incorrect; that the professional services rendered by the Peluso firm to Mr. Cotrone were performed within the applicable standard of care; and that Mr. Cotrone agreed to pay for the Peluso firm's professional services on an hourly basis. Mr. Cotrone denied the Peluso firm's special defenses on May 1, 2015 (#131.00).
This action was tried to the court on December 8, 2015. The court heard testimony from Frank N. Peluso, Esq. (Attorney Peluso) and Mr. Cotrone. The parties submitted post-trial memoranda on January 29, 2016 (#149.00; #150.00).
I
After considering all of the testimony and documentary evidence admitted, and having had the opportunity to observe the witnesses, the court makes the following findings of fact.
Attorney Peluso was born and raised in Greenwich, Connecticut. He graduated from Fordham Law School in 1955. Attorney Peluso opened his own firm, the Peluso firm, in 1965. He has been a sole practitioner since that time. He has represented clients in all types of litigation, in both state and federal courts, as well as in contract, real estate, trusts and estates, and matrimonial matters.
Mr. Cotrone was raised in Old Greenwich. He attended the Greenwich public schools, graduating from Greenwich High School in 1972. He has been a realtor since 1997.
Attorney Peluso and Mr. Cotrone are related to each other. Attorney Peluso's father and Mr. Cotrone's grandfather were first cousins. Attorney Peluso represented Mr. Cotrone's family for many years. He handled the estate of Mr. Cotrone's mother and resolved issues between Mr. Cotrone and his sisters regarding the family home.
In March 2002, Mr. Cotrone engaged the Peluso firm to represent him in an action against Salomon Smith Barney (SSB) and his account executive at the firm, Ms. Mijanou Spurdle (Ms. Spurdle), for mismanagement of his securities account. Mr. Cotrone paid a retainer of $2,000 by check dated March 22, 2002. Although Mr. Cotrone's client agreement with SSB contained an arbitration clause providing for arbitration of all disputes relating to his SSB account, he initially retained the Peluso firm to commence a civil action in the Connecticut Superior Court against SSB and Ms. Spurdle instead. The civil action, styled Jerry Cotrone v. Salomon Smith Barney, Inc. and Mijanou M. Spurdle, was served on April 10, 2002 (the Cotrone lawsuit).
" Salomon case" is written on the memo line of the check. Although Attorney Peluso's normal retainer was $5,000, he reduced the retainer to $2,000 due to the family relationship with Mr. Cotrone.
The Cotrone lawsuit did not proceed in the Superior Court. SSB and Ms. Spurdle moved to stay the Cotrone lawsuit and brought a separate action, returnable July 16, 2002, to compel arbitration pursuant to Mr. Cotrone's client agreement (the SSB lawsuit). On July 29, 2002, the court (Adams, J.) heard argument on the motion to stay the Cotrone lawsuit and compel arbitration as sought in the SSB lawsuit. The Peluso firm filed a supplemental memorandum with the court on August 8, 2002. On or about August 21, 2002, the court stayed the Cotrone lawsuit and ordered arbitration.
The Peluso firm gave Mr. Cotrone a retainer letter, dated August 9, 2002, that set forth the terms of the representation, including the firm's hourly rates and the name of the attorney who would be primarily responsible for the work on the matter. The letter reflected that Mr. Cotrone had already paid a $2,000 retainer. By check dated September 18, 2002, Mr. Cotrone paid the Peluso firm an additional $5,000.
The copy of the retainer letter admitted into evidence was not signed by Attorney Peluso or Mr. Cotrone.
Mr. Cotrone denied that he agreed to pay an hourly rate for the Peluso firm's professional services. He claimed that after Attorney Peluso presented him with a retainer letter that quoted an hourly rate, Attorney Peluso changed his mind and said that he would represent him on a contingent fee basis. Attorney Peluso testified that he never told Mr. Cotrone that he would take the matter on a contingency. The court credits Attorney Peluso's testimony.
" SSB #2" is written on the memo line on the front of the check.
After unsuccessfully moving for reargument of the court's ruling in favor of SSB and Ms. Spurdle, the Peluso firm filed an appeal on Mr. Cotrone's behalf on October 11, 2002. The Appellate Court subsequently affirmed the decision of the trial court.
By check dated March 4, 2003, Mr. Cotrone made another $5,000 payment to the Peluso firm. The Peluso firm provided a statement to Mr. Cotrone, dated May 2, 2003, for professional services rendered from March 25, 2002 to March 13, 2003. The statement indicated that the Peluso firm had given Mr. Cotrone a courtesy allowance of $5,000 and Mr. Cotrone had made payments totaling $12,000. As of May 2, 2003, the balance due from Mr. Cotrone to the Peluso firm was $9,346.56.
" SSB 3rd payment" is written on the memo line on the front of the check.
The Peluso firm furnished another statement, dated August 25, 2003, for services rendered to Mr. Cotrone on the appeal to the Appellate Court during the period from July 11, 2003 to August 14, 2003. The August 25, 2003 statement reflected fees in the total amount of $12,562.50. By check dated August 29, 2003, Mr. Cotrone paid an additional $4,000 to the Peluso firm.
" SSB" is written on the memo line on the front of the check.
After the trial court's decision was affirmed on appeal, the Peluso firm commenced an arbitration proceeding for Mr. Cotrone before the NASD in New York. The arbitration took place on February 14, 2005. The arbitrator decided in favor of Mr. Cotrone.
The court has taken judicial notice that the National Association of Securities Dealers, known as the NASD, was the self-regulatory organization of the securities industry responsible for the operation and regulation of the Nasdaq stock market and over-the-counter markets. The NASD merged with the New York Stock Exchange's regulation committee to form the Financial Industry Regulatory Authority, or FINRA, in 2007.
The Peluso firm provided a statement for professional services rendered, dated February 28, 2005, to Mr. Cotrone. The February 28, 2005 statement reflected time entries relating to the NASD arbitration and fees in the total amount of $14,210.
Mr. Cotrone filed a grievance complaint against Attorney Peluso in 2006. The Stamford/Norwalk Grievance Panel investigated Mr. Cotrone's complaint and determined that no probable cause existed to support the claim of professional misconduct alleged by Mr. Cotrone. The Grievance Panel dismissed the complaint on May 16, 2006.
As of December 8, 2015, the balance due from Mr. Cotrone to the Peluso firm was $32,119.06.
II
In the first count of the amended complaint, the Peluso firm alleges that Mr. Cotrone breached the agreement that he entered into with the Peluso firm by failing to pay the Peluso firm in full for the professional services that it provided to him. " The elements of a breach of contract claim are the formation of an agreement, performance by one party, breach of the agreement by the other party, and damages." (Citations omitted.) Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 311 Conn. 282, 291, 87 A.3d 534 (2014). " To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties . . . To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties . . . If the minds of the parties have not truly met, no enforceable contract exists . . . [A]n agreement must be definite and certain as to its terms and requirements . . . So long as any essential matters are left open for further consideration, the contract is not complete." (Citation omitted; internal quotation marks omitted.) Duplissie v. Devino, 96 Conn.App. 673, 688, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006). " A contract requires a clear and definite promise." (Citation omitted; internal quotation marks omitted.) Geary v. Wentworth Laboratories, Inc., 60 Conn.App. 622, 627, 760 A.2d 969 (2000).
Although a fully-executed retainer agreement was not offered by either party at trial, it is well established that " [p]arties are bound to the terms of a contract even though it is not signed if their assent is otherwise indicated." (Citation omitted; internal quotation marks omitted.) Original Grasso Construction Co. v. Shepherd, 70 Conn.App. 404, 411, 799 A.2d 1083, cert. denied, 261 Conn. 932, 806 A.2d 1065 (2002); see Ullman, Perlmutter & Sklaver v. Byers, 96 Conn.App. 501, 506, 900 A.2d 602 (2006) (affirming trial court determination that enforceable contract existed between attorney and former client, even where client never signed engagement letter, because client mailed retainer fee to attorney and attorney thereafter provided client with legal representation for months with client's active participation); Apex, Inc. v. E& M Custom Homes, LLC, Superior Court, judicial district of Waterbury, Docket No. CV-11-6008351-S (January 5, 2012, Taylor, J.) (53 Conn.L.Rptr. 108, ) (finding payment of portion of retainer fee to be evidence of valid and enforceable attorney fee agreement between attorney and former client where such agreement provided for equitable charging lien); Gray v. Cosi, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-05-4002871-S, (December 17, 2008, Tobin, J.) (rejecting former client's objection to attorney's request for legal fees, based on claim that attorney did not introduce evidence of signed retainer agreement; testimony was such that client signed agreement, and rule 1.5(b) of the Rules of Professional Conduct does not require attorney to obtain client's signature on retainer letter as client need only accept agreement's terms); Goldblatt, Kuselias & Rashba, PC v. Garland, Superior Court, judicial district of New Haven, Docket No. CV-02-0465368-S, (December 27, 2005, Meadow, J.) (finding attorney and former client had entered into enforceable contract for legal services despite unsigned agreement because client paid the retainer).
Mr. Cotrone paid the initial retainer of $2,000, accepted the professional services provided by the Peluso firm as agreed, and made payments to the firm totaling $14,000 thereafter, thus demonstrating his assent to the terms of his contract with the Peluso firm, as memorialized in the retainer agreement, and the representation. Subject to consideration of Mr. Cotrone's second special defense, discussed below, the court finds that the Peluso firm established by a preponderance of the evidence that it entered into an enforceable contract with Mr. Cotrone, pursuant to which it provided him with legal representation at its stated hourly rates, and that Mr. Cotrone breached that agreement by failing to pay the Peluso firm in full for its professional services.
Mr. Cotrone alleged as his first and third special defenses that no written contractual relationship existed and that the Peluso firm led him to believe that it was representing him on a contingent fee basis. These claims are more in the nature of denials than special defenses, because they contest the allegations of the amended complaint. " [F]acts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. Practice Book § 10-50 . . . The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway." (Citation omitted; internal quotation marks omitted.) Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005).
III
Mr. Cotrone asserts as a second special defense that the Peluso firm cannot recover against him because it violated Rule 1.5(b) and (c) of the Rules of Professional Conduct. As a preliminary matter, the court notes that there appears to be some disagreement as to whether a violation of the Rules of Professional Conduct may be raised as a special defense. Our Appellate Court has observed that " [t]he Rules of Professional Conduct do not of themselves give rise to a cause of action, even to an attorney's client . . . They are not designed to be a basis for civil liability . . . The fact that a Rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty." (Citations omitted; internal quotation marks omitted.) Ankerman v. Mancuso, 79 Conn.App. 480, 485, 830 A.2d 388 (2003), aff'd, 271 Conn. 772, 860 A.2d 244 (2004); see Updike, Kelly & Spellacy, P.C v. Beckett, 269 Conn. 613, 635 n.17, 850 A.2d 145 (2004) (addressing defendants' argument as to Rule 1.5(b) and (c) and stating that violation of rule of professional conduct does not give rise to a cause of action nor should it create presumption that legal duty has been breached); see also Rules of Professional Conduct, Scope (stating " [v]iolation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption that a legal duty has been breached"). Although there appears to be no appellate authority precisely on point, Ankerman and Updike, Kelly support the proposition that an attorney's failure to comply with the Rules of Professional Conduct may not be raised by a client as a special defense to a claim for unpaid legal fees.
The trial courts have, however, considered special defenses based on the Rules of Professional Conduct in certain instances. See, e.g., Febbroriello v. Babij, Superior Court, judicial district of Litchfield, Docket No. LLI-CV-12-6006461-S, (July 31, 2015, Moore, J.) (finding no need to address special defense that attorney violated rule 1.5(b) because no written contract existed, but considering principles set forth in Rules 1.2, 1.3, 1.4 and 1.5, as specifically alleged in special defenses or testified to by defendant, in undertaking analysis of all relevant factors necessary in ruling upon equitable claim of unjust enrichment); Allen A. Currier, LLC v. Barton Properties Connecticut, LLC, Superior Court, judicial district of New Britain, Docket No. CV-13-6019163-S, (August 11, 2014, Young, J.) (granting motion to strike former client's special defense that attorney violated Rule 1.5(a) because client failed to identify case in which attorney's legal fees were unreasonable and excessive or any factual basis for any violation of the Rule); Rosenblit v. Dade Realty Co., Superior Court, judicial district of Hartford, Docket No. CV-12-6030654-S, (February 22, 2013, Scholl, J.) (concluding former client's special defense that Rule 1.5(b) barred attorney from recovery was without merit because evidence established attorney regularly represented client); Proskauer Rose, LLP v. Lindholm, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-07-5005353-S (May 19, 2008, Tobin, J.) (45 Conn.L.Rptr. 503, ) (concluding Rule 1.5 was legally sufficient special defense because supporting allegations found to be based on plaintiff's conduct and not on claim that such conduct was violation of the rules); Louden Legal Group, LLC v. Taff, Superior Court, judicial district of Litchfield, Docket No. CV-03-0090461, (May 25, 2006, Caruso, J.T.R) (finding attorney complied with Rule 1.5 because he sent former client signed fee agreement and testified credibly that client had signed it; thus, client's special defense failed); Nusbaum and Parrino v. Harrick, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-00-0179122-S (January 18, 2002, Hickey, J.) (finding former client's special defense of unclean hands legally sufficient, where client alleged attorney violated Rule 1.5, among other things, in support of such defense).
The Peluso firm denied all of Mr. Cotrone's special defenses but did not specifically challenge the legal sufficiency of the second special defense, which is based on the Peluso firm's alleged failure to comply with Rule 1.5(b) and (c). Therefore, the court will consider whether these subsections of Rule 1.5 have any bearing on the Peluso firm's claims against Mr. Cotrone.
Rule 1.5(b) requires an attorney to submit a written communication to a client regarding the costs of litigation and the scope of representation. See Burton v. Mottolese, 267 Conn. 1, 39, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S.Ct. 2422, 158 L.Ed.2d 983 (2004) (concluding, after court initiated investigation into plaintiff attorney's conduct sua sponte, plaintiff violated rule 1.5(b) because she failed to execute written retainer agreements with all twenty-two plaintiffs in underlying complaint). There is an exception in Rule 1.5(b) to the writing requirement when an attorney is billing a regularly represented client on the same basis or at the same rate. See Rosenblit v. Dade Realty Co., supra, Superior Court, Docket No. CV-12-6030654-S, (February 22, 2013, Scholl, J.).
Rule 1.5(b) provides in pertinent part that " [t]he scope of the representation, the basis or rate of the fee and expenses for which the client will be responsible, shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client in writing before the fees or expenses to be billed at higher rates are actually incurred."
Rule 1.5(c) mandates that an attorney must put in writing any contingent fee agreement and provide the written agreement to the client. See Statewide Grievance Committee v. Gifford, 76 Conn.App. 454, 465, 820 A.2d 309 (2003) (upholding trial court determination that defendant attorney violated Rule 1.5(c) where he never provided former client with written contingent fee agreement). See also General Statutes § 52-251c.
Rule 1.5(c) provides in pertinent part that " [a] fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by subsection (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages of the recovery that shall accrue to the lawyer as a fee in the event of settlement, trial or appeal, whether and to what extent the client will be responsible for any court costs and expenses of litigation, and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination."
General Statutes § 52-251c provides in pertinent part that " [i]n any claim or civil action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, the attorney and the claimant may provide by contract, which contract shall comply with all applicable provisions of the rules of professional conduct governing attorneys adopted by the judges of the Superior Court, that the fee for the attorney shall be paid contingent upon, and as a percentage of: (1) Damages awarded and received by the claimant; or (2) the settlement amount received pursuant to a settlement agreement." In Gagne v. Vaccaro, 255 Conn. 390, 766 A.2d 416 (2001), the defendant, the successor attorney, asserted as a special defense that the failure of the plaintiff, the former attorney, to comply with § 52-251c precluded the plaintiff from recovering any contingency fee. Id. at 395. The court did not address the issue of whether § 52-251c was an appropriate special defense.
The exception to the Rule 1.5(b) requirement that a written communication be provided is applicable here. Mr. Cotrone was a regularly represented client of the Peluso firm. The Peluso firm charged him for the services it provided on the SSB matter on the same basis as it had previously billed him. In addition, information concerning the scope of representation and the fees to be charged was set forth in the August 9, 2002 retainer letter. Rule 1.5(c) has no bearing on this case, because the Peluso firm did not undertake to represent Mr. Cotrone on a contingent fee basis.
Accordingly, even if the court were to recognize a claim that an attorney failed to comply with Rule 1.5(b) and (c) as a legally sufficient special defense to an action for unpaid legal fees, Mr. Cotrone's second special defense would not bar the Peluso firm's claim for breach of contract here.
IV
In the second count of the amended complaint, the Peluso firm asserts a claim for quantum meruit against Mr. Cotrone. " Quantum meruit is the remedy available to a party when the trier of fact determines that an implied contract for services existed between the parties, and that, therefore, the plaintiff is entitled to the reasonable value of services rendered . . . The pleadings must allege facts to support the theory that the defendant, by knowingly accepting the services of the plaintiff and representing to her that she would be compensated in the future, impliedly promised to pay her for the services she rendered." (Citation omitted.) Burns v. Koellmer, 11 Conn.App. 375, 383-84, 527 A.2d 1210 (1987).
Quantum meruit and unjust enrichment are related causes of action. Pollansky v. Pollansky, 162 Conn.App. 635, 656 n.9, 133 A.3d 167 (2016). " Unjust enrichment and quantum meruit are forms of the equitable remedy of restitution by which a plaintiff may recover the benefit conferred on a defendant in situations where no express contract has been entered into by the parties." Burns v. Koellmer, supra, 11 Conn.App. at 385.
A claim for quantum meruit may be pleaded in the alternative to a claim for breach of contract. The quantum meruit doctrine allows for restitution in situations where a valid contract does not exist. See Biller Assocs. v. Rte. 156 Realty Co., 52 Conn.App. 18, 30, 725 A.2d 398, 405 (1999), aff'd, 252 Conn. 400, 746 A.2d 785 (2000). " Quantum meruit is a theory of contract recovery that does not depend upon the existence of a contract, either express or implied in fact . . . Rather, quantum meruit arises out of the need to avoid unjust enrichment to a party, even in the absence of an actual agreement . . . Centered on the prevention of injustice, quantum meruit strikes the appropriate balance by evaluating the equities and guaranteeing that the party who has rendered services receives a reasonable sum for those services." (Citation omitted; internal quotation marks omitted.) Pollansky v. Pollansky, supra, 162 Conn.App. at 658.
As the court has found that a valid and binding contract existed between the parties, it does not need to reach the Peluso firm's claim for quantum meruit set forth as an alternate ground for recovery in the second count of the amended complaint. If there were no enforceable contract, the court would find that the Peluso firm was entitled to recover the reasonable value of the services rendered to Mr. Cotrone, in the amount of $53,119.06, less the $16,000 paid on account and the $5,000 courtesy discount previously provided.
V
In the third count of the amended complaint, the Peluso firm alleges a claim for unjust enrichment against Mr. Cotrone. " [U]njust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract . . . A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy." (Citation omitted; internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006). " To establish a claim of unjust enrichment the plaintiff must prove . . . that the defendant was benefited; . . . that the defendant unjustly did not pay the plaintiff for the benefits; and . . . that the failure of payment was to the plaintiffs' detriment." (Citation omitted.) Danziger Homes, Inc. v. Wasserman, Superior Court, judicial district of Danbury, Docket No. CV-08-5008894-S (Sept. 28, 2011, Cobb, J.) . " The fact that the plaintiff could not recover under the contract does not bar its recovery under the theory of unjust enrichment; indeed, lack of a remedy under the contract is a precondition for recovery based upon unjust enrichment." (Citation omitted.) Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 284, 649 A.2d 518 (1994). The " measure of damages in an unjust enrichment case ordinarily is not the loss to the plaintiff but the benefit to the defendant." (Citation omitted.) Id. at 285.
The court does not need to reach the Peluso firm's claim for unjust enrichment set forth as an alternate ground for recovery in the third count of the amended complaint, because the court has found that a valid and binding contract existed between the parties. If there were no enforceable contract, the court would find for the Peluso firm on the theory of unjust enrichment, because Mr. Cotrone received a benefit in the amount of $53,119.06, less $16,000 paid on account and the $5,000 courtesy discount previously provided, representing the value of the legal services provided to him by the Peluso firm for which he has not fully paid.
VI
Mr. Cotrone alleged in his amended counterclaim that he paid the Peluso firm a total of $18,268.72, which he claimed the Peluso firm wrongfully retained in violation of Rule 1.5 of the Rules of Professional Conduct. No evidence was offered to support Mr. Cotrone's claim that he paid $18,268.72 to the Peluso firm. As the court has found in favor of the Peluso firm on the first count of the amended complaint, the court finds against Mr. Cotrone on the amended counterclaim.
VII
Accordingly, judgment shall enter in favor of the Peluso firm and against Mr. Cotrone on the amended complaint (#113.00; #114.00) in the amount of $32,119.06, and in favor of the Peluso firm and against Mr. Cotrone on the amended counterclaim (#123.00).