Opinion
No. UWY X01 CV 03 0183606S
September 9, 2008
I BACKSTORY
This memorandum of decision pertains to the motions for attorneys fees and costs pursuant to 42 U.S.C. § 1988 filed on January 18, 2008, by the plaintiffs, Frank Perrotti, Jr., and Thomas Santa Barbara, Jr.; and on January 24, 2008, by the plaintiffs, New England Estates, L.L.C. (New England Estates), in the action captioned New England Estates, L.L.C. v. Branford, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 03 0183606 (§ 1983 action).
In 1991, Perrotti and Santa Barbara purchased a seventy-seven-acre parcel of undeveloped real property at 48-86 Tabor Drive in Branford, Connecticut, at a foreclosure auction (the property). In 2001, New England Estates entered into an option contract with Perrotti and Santa Barbara to purchase the property for $4.75 million. New England Estates intended to develop the property for residential use.
"As of the time of the taking, 70 acres of the site were zoned as IG-2 industrial. A small portion of the site was zoned as R-3. There was also a Special Development Area (SDA) overlay zone over the entire site, which defines areas in which other zoning districts may be established, including a planned development district (PDD). A PDD is an area that is to be located only within an SDA and may have unique provisions. The Branford planning and zoning commission eliminated the PDD from the zoning map in January 2002." New England Estates, L.L.C. v. Branford, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 04 4010133 (August 3, 2007, Cremins, J.)
New England Estates attempted to develop the property into 268 residential condominium units and a golf course. In May of 2002, New England Estates received a permit from the Branford inland wetlands commission for its project. New England Estates also sought a new PDD designation for the property, and in November 2002, the Branford planning and zoning commission denied the application. That denial was subsequently appealed to the Superior Court.
On May 21, 2003, the Branford board of selectmen adopted a resolution recommending to Branford's legislative body, the representative town meeting, to take title to the land. On May 30, 2003, New England Estates filed a new plan with the Branford planning and zoning commission under Connecticut's affordable housing statute, General Statutes § 8-30g. This new plan called for 354 residential units but eliminated the golf course contained in previous plans. In June 2003, New England Estates withdrew its initial affordable housing application and filed a new affordable housing plan for 354 residential units that restored the previously eliminated golf course with the Branford inland wetlands commission and the Branford planning and zoning commission. On July 9, 2003, the representative town meeting voted to authorize acquisition of the property.
On July 18, 2003, New England Estates instituted this § 1983 action, alleging that the defendant, the town of Branford, had violated that takings clause of the fifth amendment to the United States Constitution though its use of the power of eminent domain to take the property belonging to Perrotti and Santa Barbara. Through its complaint, New England Estates "sought a temporary restraining order against the use of eminent domain pending a hearing on its contemporaneous application for temporary injunction; a temporary injunction pending a full trial on the merits; a permanent injunction; consequential damages under § 1983; and attorneys fees and costs under § 1988." Memorandum of plaintiff New England Estates, L.L.C. in support of motion for attorneys fees and costs pursuant to 42 U.S.C. § 1988, dated January 24, 2008, p. 2. Around this time, New England Estates applied to transfer the matter to the complex litigation docket, but a ruling on that application was deferred pending the outcome of New England Estates' application for a temporary injunction.
On August 13, 2003, the representative town meeting approved the appropriation of funds to be used in the acquisition of the property. Following that approval, in August 2003, the Branford inland wetlands commission denied New England Estates' application for a permit for its plans for an affordable housing development. In September 2003, New England Estates appealed that denial to the Superior Court.
On August 18, 2003, New England Estates filed a motion to cite in Perrotti and Santa Barbara, which motion was subsequently granted. In August 2003, the court, Arnold, J., granted New England Estates a temporary restraining order against Branford's use of eminent domain, pending a hearing on New England Estates' application for a temporary injunction. On September 10, 2003, New England Estates filed an amended complaint, bringing claims against Branford, First Selectman Anthony DeRos and Branford representative town meeting members Francis Walsh, Robert Denhardt, Jr., and George Laske, alleging bad faith taking, violations of procedural due process, violations of the state and federal housing acts, tortious interference with contractual relations, and indemnification.
In September through November 2003, New England Estates and the Branford planning and zoning commission proceeded with administrative hearings on New England Estates' June 2003 affordable housing application.
The court, by a decision issued December 15, 2003, DeMayo, J., denied the application for a temporary injunction. New England Estates' emergency petition to the Connecticut Supreme Court pursuant to General Statutes § 52-265a for a stay pending appeal was denied, and "[o]n December 18, 2003, Branford filed its statement of compensation in the amount of $1,167,800 with the clerk of the Superior Court in the judicial district of New Haven in connection with the taking of the property . . . On January 5, 2004, the clerk of the court issued a certificate for the taking of the subject property, which was recorded in volume 855, page 428 of the Branford land records. In that same action, Santa Barbara and Frank Perrotti filed an appeal and application for review of the statement of compensation filed by the town of Branford, dated May 25, 2004." New England Estates, L.L.C. v. Branford, supra, Superior Court, Docket No. X01 CV 04 4010333.
On January 8, 2004, the Branford planning and zoning commission issued its denial of the affordable housing application. New England Estates did not appeal from the denial of the affordable housing application, and it withdrew its appeal from the Branford inland wetlands commission.
Meanwhile, on June 9, 2004, in a separate action, New England Estates filed its appeal and application for review of the statement of compensation filed by Branford. Subsequently, the two condemnation actions and this action, the § 1983 action, were consolidated and transferred to the complex litigation docket.
After being cited into the § 1983 case by New England Estates, Perrotti and Santa Barbara filed a cross complaint against Branford and Branford officials. On February 2, 2005, Perrotti and Santa Barbara filed an amended cross complaint alleging negligence; trespass; negligent trespass; tortious interference; and nuisance against Branford, DeRos, Walsh, Denhardt, and Laske.
New England Estates filed a second amended complaint on August 1, 2006, withdrawing all of its claims save for the following claims: bad faith use of eminent domain, violations of the takings clause of the fifth amendment to the United States constitution and 42 U.S.C. § 1983; violation of substantive due process; and tortious interference with contractual relations.
On August 22, 2006, Perrotti and Santa Barbara filed a second amended complaint, adding claims against Branford for bad faith use of eminent domain in violation of 42 U.S.C. § 1983; violation of substantive due process; and tortious interference with contractual relations.
In the spring of 2007, the court bifurcated the consolidated cases into two phases, with the issue of valuation/just compensation to be tried to the court in June 2007, and the jury trial of the § 1983 federal civil rights/federal takings clause claim to be held in August 2007. The condemnation case was tried to this court in June and July of 2007, and this court issued its memorandum of decision, finding the fair market value of the property to be $4.6 million. The condemnation case is currently on appeal to the Connecticut Supreme Court.
By the time that the § 1983 action commenced in August 2007, the only claim that New England Estates was pursuing against Branford was the bad faith taking claim pursuant to § 1983. In August of 2007, the court granted Branford's motion for summary judgment in part as to Perrotti and Santa Barbara's claims. Therefore, the only claims that Perrotti and Santa Barbara pursued in the § 1983 case were § 1983 claims.
At the § 1983 trial, New England Estates prevailed on its one claim, with the jury awarding New England Estates $11,243,876 in lost profits and $1,192,038.78 in investment expenses. At the § 1983 trial, Perrotti and Santa Barbara prevailed on their claims, and the jury awarded them all the money that they would have received from New England Estates under the option contract had Branford not taken the property. Branford filed a post-verdict motion in October 2007, to which New England Estates responded. The court denied Branford's motion. The § 1983 case is currently on appeal to the Connecticut Supreme Court.
II JOURNEY OF THE MOTIONS FOR ATTORNEYS FEES
On January 18, 2008, Perrotti and Santa Barbara filed a substituted motion for attorneys fees, costs, and expert fees pursuant to 42 U.S.C. § 1988, accompanied by a substituted memorandum of law in support thereof. On January 24, 2008, New England Estates filed its motion for attorneys fees and costs pursuant to 42 U.S.C. § 1988 accompanied by a memorandum of law in support thereof. On April 11, 2008, Branford filed a memorandum in opposition to these motions. On May 1, 2008, New England Estates filed a reply brief, and on May 2, 2008, Perrotti and Santa Barbara filed a reply brief. On May 8, 2008, New England Estates filed responses to this court's orders dated May 6, 2008. On May 9, 2008, Perrotti and Santa Barbara filed a response to this court's May 6, 2008 order. Oral argument on the motions was heard on May 12, 2008. The court requested subsequent submissions from New England Estates and Perrotti and Santa Barbara, which were filed on May 9, 2008, by both parties, on July 25, 2008, by both parties, and on July 31, 2008, by Perrotti and Santa Barbara.
III DISCUSSION 42 U.S.C. 1988
42 U.S.C. § 1988 provides in relevant part: "(b) In any action or proceeding to enforce a provision of sections . . . 1983 . . . of this title . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorneys fee as part of the costs . . ." (Emphasis added.)
"The purpose of § 1988 is to make sure that competent counsel is available to civil rights plaintiffs. Blanchard v. Bergeron, 489 U.S. 87, 93, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989). The amount of attorneys fees awarded is left to the discretion of the trial court. Weyel v. Catania, 52 Conn.App. 292, 302, 728 A.2d 512, cert. denied, 248 Conn. 922, 733 A.2d 846 (1999). "No one can state the reasonable value of legal services as a fact. He can only express his opinion. The value is based upon many considerations." . . . Hoenig v. Lubetkin, 137 Conn. 516, 524, 79 A.2d 278 (1951). With respect to awards pursuant to § 1988, those considerations include the rates "prevailing in the community for similar services by reasonably comparable skill, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 895-96 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)." Laudano v. New Haven, 58 Conn.App. 819, 822, 755 A.2d 907 (2000). "A court has few duties of a more delicate nature than that of fixing counsel fees." (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 258, 828 A.2d 64 (2003).
"[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. The applicant should exercise `billing judgment' with respect to hours worked . . . and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims." (Internal citation omitted.) Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).
"A plaintiff must be a `prevailing party' to recover an attorneys fee under § 1988. The standard for making this threshold determination has been framed in various ways. A typical formulation is that `plaintiffs may be considered "prevailing parties" for attorneys fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.' Nadea v. Helgemoe, 581 F.2d 275, 278-79 (9th Cir. 1978)." Hensley v. Eckerhart, supra, 461 U.S. 433.
After a plaintiff has met the prevailing party threshold, the court must next determine what the reasonable fee is. Id. "Congress implicitly endorsed two existing methods of calculating the `reasonable fee' that were developed in the 1970s by the circuit courts. See Hensley v. Eckerhart, [ supra, 461 U.S. 429-30 n. 3]. The first, developed by the Third Circuit, was the `lodestar' method. See Lindy Bros. Builder, Inc. v. Am. Radiator Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973). The lodestar was the product of the attorney's usual hourly rate and the number of hours worked. See [ id., 167] (directing district courts to calculate the lodestar using the attorney's `normal billing rate'); see also City of Burlington v. Dague, 505 U.S. 557, 559, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992). After determining the lodestar, the district court could adjust it in setting the reasonable fee." Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany, 522 F.3d 182, 186 (2d Cir. 2007). "The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services." Hensley v. Eckerhart, supra, 433. "Thus, the lodestar method involved two steps: (1) the lodestar calculation; and (2) adjustment of the lodestar based on case-specific considerations." Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany, supra, 186. The United States Court of Appeals for the Second Circuit has announced its intent to abandon the term "lodestar" and use the term "presumptively reasonable fee instead." Id., 190.
"[T]he decisions of the federal circuit in which a state court is located are entitled to great weight in the interpretation of a federal statute. This is particularly true in 42 U.S.C. § 1983 cases, where the federal statute confers concurrent jurisdiction on the federal and state courts." (Internal quotation marks omitted.) Thomas v. West Haven, 249 Conn. 385, 392, 734 A.2d 35 (1999).
"The second method, developed by the Fifth Circuit, was for district courts to consider twelve specified factors to establish a reasonable fee. See Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, supra, 489 U.S. 92-93, 96 (declining to limit fee award to amount stipulated in attorney-client agreement). The Johnson method differed from the lodestar method in that it contemplated a one-step inquiry." Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany, supra, 522 F.3d 186.
"The Johnson court set out twelve guidelines for the District Court to consider . . . 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 . . ." (Internal quotation marks omitted.) Med ValUSA Health Programs, Inc. v. Memberworks, Inc., 109 Conn.App. 308, 313 n. 2, 951 A.2d 26 (2008).
New England Estates asserts that the hourly rates that its law firm, Shipman Goodwin, LLP (Shipman Goodwin) charged are reasonable and reimbursable. Perrotti and Santa Barbara also maintain that the hourly rates that its law firm, Robinson Cole LLP (Robinson Cole) charged are reasonable. The parties stipulated on the record that the "hourly rates" of Shipman Goodwin and Robinson Cole are reasonable.
In Webb v. Dyer County Board of Education, 471 U.S. 234, 243-44, 105 S.Ct. 1923, 85 L.Ed.2d 233 (1985), the United States Supreme Court stated: "[T]he district court has discretion in determining the amount of a fee award." (Internal quotation marks omitted.)
IV CONCLUSION
With regard to New England Estates, this court awards attorneys fees and costs as per the submission of January 24, 2008 [see appendix to plaintiff New England Estates, L.L.C.'s motion for attorneys fees and costs pursuant to 42 U.S.C. § 1988, at tab #6] less charges for litigation consultants and the jury focus group. The net amount of the award is $1,488,587.
With regard to Perrotti and Santa Barbara, this court awards attorneys fees as per the submission of July 30, 2008 [see supplemental response of Thomas Santa Barbara, Jr. and Frank Perrotti, Jr. to court order dated July 25, 2008, at exhibit A, pp. 7, 8-18, 19]. The total amount of the award is $275,979.