Opinion
HHDCV166067683S
10-18-2017
Rosenthal Law Firm, LLC v. James Cohen
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
ROBERT B. SHAPIRO, JUDGE OF THE SUPERIOR COURT.
At a bench trial on July 6, 2017, in this matter where the plaintiff seeks damages based on the parties' December 1, 2011 written agreement for legal services, the court heard testimony and received documentary evidence. At the close of the evidentiary presentation, in lieu of oral argument, the parties agreed to submit memoranda of law, the last of which was filed on September 8, 2017.
After consideration, the court issues this memorandum of decision.
I
Background
At trial, two witnesses testified, Edward Rosenthal, an attorney, and sole member of the plaintiff limited liability company, a law firm, and James Cohen, the defendant, a former client of the law firm. In addition, the parties presented evidence through various documents.
The plaintiff seeks to recover monetary damages, attorneys fees, and interest, based on paragraph 12 of the parties' agreement, which provides, in relevant part: " Attorneys Fees and Interest. In the event that client does not pay [the law firm] its attorneys fees or expenses in this matter as indicated herein, client agrees to pay all costs related to a collection action including [law firm's] attorneys fees and interest at the annual rate of ten percent (10%)." See plaintiff's Exhibit 1.
In its complaint, the plaintiff law firm alleges that, after an arbitration before the Connecticut Bar Association's (CBA) Legal Fee Resolution Board, an award was rendered in its favor, and then confirmed by judgment in the Superior Court, after which the defendant appealed to the Appellate Court. By decision dated May 10, 2016, the Appellate Court affirmed the Superior Court's decision. See Rosenthal Law Firm, LLC, v. Cohen, 165 Conn.App. 467, 139 A.3d 774, cert. denied, 322 Conn. 904, 138 A.3d 933 (2016).
The Appellate Court summarized the dispute as follows: " On December 1, 2011, the parties entered into an agreement for legal services whereby they agreed to submit any fee disputes to the Connecticut Bar Association for binding arbitration. On March 3, 2014, the plaintiff petitioned the legal fee resolution board of the Connecticut Bar Association (board) to resolve a fee dispute that had arisen between the parties. After a hearing, a panel of three arbitrators found in favor of the plaintiff The defendant received notice of the board's award on December 24, 2014. On January 26, 2015, the plaintiff filed an application to confirm the arbitration award in the Superior Court for the judicial district of Hartford. On February 2, 2015, the defendant filed an application to vacate the arbitration award. On March 17, 2015, the court held a hearing on the application to confirm and the application to vacate. The plaintiff argued, among other things, that the court could not consider the defendant's application to vacate because it was untimely. The defendant countered that although his initial attempt to file the application to vacate was unsuccessful, the application nevertheless was timely filed at the time of the initial attempt. At the conclusion of the hearing, the court rendered an oral decision granting the plaintiff's application to confirm the arbitration award . . . On appeal, the defendant claim[ed] that the court incorrectly concluded that his application to vacate was untimely and should have denied the plaintiff's application to confirm for one or more of the following reasons: the defendant was deprived of due process in the commencement of and during arbitration; the arbitration panel demonstrated bias by failing to consider his testimony and evidence; the panel's findings were erroneous; and the award was contrary to public policy. The plaintiff argues, inter alia, that because the defendant did not file the application to vacate within thirty days of receiving notice of the arbitration award, as required by General Statutes § 52-420(b), the court lacked subject matter jurisdiction over the application to vacate and was obligated to confirm the award. We agree with the plaintiff that because the defendant did not make a timely application to vacate the arbitration award, the court, pursuant to General Statutes § 52-417, properly granted the application to confirm the award." (Footnotes omitted.) Id., 468-70.
In addition, the defendant commenced an action in the United States District Court for the District of Connecticut against Rosenthal, individually and as sole member of the law firm. See Docket 3:15-cv-01043 (CSH). In a decision on a motion to dismiss, dated December 19, 2016, the federal court, Haight, Senior District Judge, dismissed with prejudice three of the four claims, and dismissed the defendant's remaining claim without prejudice, allowing the defendant the opportunity to file a second amended complaint that properly alleged the elements of breach of the implied covenant of good faith and fair dealing. Subsequently, this claim was again dismissed.
In his post-trial memorandum (#153), page 7, the defendant stated that the amended complaint was " just dismissed since the claims were inadequately plead."
Also, the defendant filed a grievance against the plaintiff. The Grievance Panel dismissed the defendant's grievance in a decision dated February 16, 2016. See plaintiff's Exhibit 5.
The plaintiff seeks to recover damages in four separate categories: (1) damages for legal time spent prosecuting the arbitration and defending the resultant arbitration award; (2) damages for legal time spent defending the federal action; (3) damages for legal time defending the grievance; and (4) damages for legal time prosecuting the present case to collect attorneys fees. Additional references to the facts are set forth below.
II
Discussion
" The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Summerhill, LLC v. City of Meriden, 162 Conn.App. 469, 474, 131 A.3d 1225 (2016).
" It is axiomatic that a plaintiff may rely only upon what [it] has alleged [and] the right of a plaintiff to recover is limited to the allegations of [its] complaint . . . What is in issue is determined by the pleadings and these must be in writing . . . A judgment upon an issue not pleaded would not merely be erroneous, but it would be void." (Citation omitted; internal quotation marks omitted.) Saye v. Howe, 92 Conn.App. 638, 642, 886 A.2d 1239 (2005) . " Simple fairness requires that a defendant not be forced to defend against facts that are not clearly pleaded in a complaint." Stevens v. Helming, 163 Conn.App. 241, 248, 135 A.3d 728 (2016) (affirming summary judgment).
Here, neither the federal action nor the grievance proceeding are mentioned in the plaintiff's complaint. Accordingly, the court may not consider the plaintiff's damages claims as to either of those proceedings, and need not determine whether paragraph 12 of the parties' agreement is applicable to them.
According to the parties' agreement, as stated above, the defendant agreed to pay to the plaintiff " all costs related to a collection action, " including attorneys fees and interest. The defendant has not shown that the agreement was modified or superseded. The arbitration proceeding before the CBA Legal Fee Resolution Board was a collection action, and costs related to it also include those incurred in connection with the plaintiff's application to confirm the resulting award and the defendant's challenges to it in the Superior Court, and his appeal therefrom. Similarly, this action to collect fees is a collection action.
The plaintiff argues that it is entitled to recover attorneys fees for the services rendered by Attorney Rosenthal. In the proceedings before the CBA Legal Fee Resolution Board, in connection with the plaintiff's application to confirm the resulting award and the defendant's challenges to it in the Superior Court, and in the ensuing appeal, the plaintiff was self-represented. Similarly, in this action, the plaintiff was self-represented up until the trial of this matter, when it retained trial counsel. See plaintiff's post-trial brief (#152), p. 6 (" Up to the point of the trial itself, the plaintiff, through Attorney Rosenthal, represented itself in the present action"). All of the claimed attorneys fees are based on services rendered by Attorney Rosenthal on behalf of the plaintiff. See plaintiff's Exhibit 7.
This court must be guided by appellate authority. " The law of this state is that pro se litigants are not entitled to attorneys fees." Jones v. Ippoliti, 52 Conn.App. 199, 212, 727 A.2d 713 (1999). See Dunn v. Peter L. Leepson, P.C., 79 Conn.App. 366, 372, 830 A.2d 325, cert. denied, 266 Conn. 923, 835 A.2d 472 (2003).
The plaintiff attempts to distinguish Jones v. Ippoliti, supra, where the Appellate Court affirmed the trial court's denial of the request for attorneys fees for services rendered by attorneys and paralegals employed by the plaintiffs' law firm, and where the promissory note at issue provided for the payment of " costs and expenses, including reasonable attorneys . . . fees incurred in the collection of this Note or in any litigation or controversy arising from or connected with this Note." See id., 52 Conn.App. 202 n.5. The plaintiff argues that, in Jones, the attorneys from the plaintiffs' law firm assisted outside trial counsel, but did not enter an appearance; while, here, in contrast, Attorney Rosenthal entered an appearance. However, the Appellate Court stated, " Because Pepe and Hazard did not enter an appearance on behalf of the plaintiffs, it did not represent them in this action. Even if we were to conclude otherwise, i.e., that Pepe and Hazard represented the plaintiffs, such representation would have been of a pro se nature. The law of this state is that pro se litigants are not entitled to attorneys fees." Id., 52 Conn.App. 212.
Since the only fees claimed by the plaintiff are based on services rendered by Attorney Rosenthal, the plaintiff has not proved that it is entitled to recover the claimed damages. In the absence of this necessary element, judgment may enter for the defendant. Other arguments concerning the plaintiff's claims need not be considered.
The defendant has not shown that sanctions are warranted. The defendant's request for an award of sanctions is denied.
CONCLUSION
1. For the reasons stated above, judgment may enter for the defendant and against the plaintiff as to the plaintiff's complaint.
2. Costs to be assessed by the Clerk.
It is so ordered.