Opinion
No. CV-04-0488042 S
August 16, 2005
MEMORANDUM OF DECISION
This is an action brought to obtain the unpaid balance for legal fees due the plaintiff law firm, Ullman, Perlmutter Sklaver for legal services rendered to the defendant Bonnie Byers (Byers) during the period February 6, 2002 through December 31, 2003.
The essential allegations of the plaintiff's complaint are that the plaintiff rendered legal services to the defendant and the defendant owed a balance pursuant to a written retainer agreement. The amount is $5,640.70.
The defendant filed an answer which admits in paragraph one and the portion of paragraph 2 representing the defendant. Paragraphs 3 and 4, as well as the remainder of paragraph 2 are denied. She filed a special defense claiming having Attorney Greenfield of the case. The special defense was denied.
The defendant met with Attorney Perlmutter on February 16, 2002. She was removed as conservator of Lauretta Carroll. A suit had been brought by the new conservator and repayment was made ordered for $147,000.
On March 11, 2002 a check for $7500 was received by the plaintiff. Attorney Perlmutter testified he thought the contract was signed.
Attorney Perlmutter brought a petition against Attorney Greenfield pursuant to Rule 1.9 alleging a conflict of interest. It was denied.
The notification of the denial was dated April 3, 2003 CT Page 11968-b and mailed on April 9, 2003. The Tyler Cooper and Alcorn law firm representing Attorney Greenfield on the same day filed a motion for default for failure to plead. Attorney Perlmutter received the decision on April 10, 2003. Based upon a motion to vacate, the default was set aside (Thompson, J.).
Judicial pretrial was held at which possible resolution was discussed. Ultimately a settlement of $50,000 was agreed. After exchange of releases, the action was withdrawn on December 9, 2003.
By letter dated February 3, 2004, demand was made. Since satisfaction was not forthcoming suit was commenced.
The defendant raises four grounds to consider.
A. Not engage a formal contract.
B. Not performing any services.
C. Charge for an error.
D. Charge of Attorney Greenfield.
A. There was a single, formal contract.
The contract rules (Ex. 1) was mailed February 6, 2002 to the defendant. Rule 1.5(b). Instructions were terms for the signature and retainer. The defendant disputes this.
"The law favors a construction which will make a contract valid rather than invalid unless that construction is required by the terms of the agreement in light of surrounding circumstances . . . It is well established law that one enjoying rights is estopped from repudiating the dependent conditions and obligations which he has assumed. Parties cannot accept benefits under a contract fairly made and at the same time question its validity. Lunceford v. Wilcox, 88 N.Y.S.2d 225, 228, and cases cited therein." Mozzochi v. Luchs, 35 Conn.Sup. 19, 23 (1977).
"Parties cannot accept benefits under a contract CT Page 11968-c fairly made and at the same time question its validity," Svenska Taendsticks Fabrik Aktiebolaget v. Bankers Trust Co. of New York, 268 N.Y. 73-81, 196 N.E. 748.
"Parties are bound to the terms of a contract even though it is not signed if their assent is otherwise indicated." Hoye v. DeWolfe Co., 61 Conn.App. 558, 564 (2001).
"One enjoying rights is estopped from repudiating dependent obligations which he has assumed; parties cannot accept benefits under a contract fairly made and at the same time question its validity. Mozzochi v. Luchs, 35 Conn.Sup. 19, 23, 391 A.2d 738 (1977) . . . `In the absence of a statute requiring a signature . . . parties may become bound by the terms of a contract, even though they do not sign it, where their assent is otherwise indicated, such as by the acceptance of benefits under the contract.' 17 Am.Jur.2d, Contracts § 70." Schwarzschild v. Martin, 191 Conn. 316, 322 (1983).
Grasso Construction Co. v. Shepherd, 70 Conn.App. 404 (2002).
As to the matters listed B, C and D, all of that deal with the exercise of legal discretion.
This is more plausible than sound. Professional services are not to be classified with bags of flour or other merchandise, and the books of account of an attorney are not to be likened to those of the corner grocer. When the latter makes a charge against a customer, that limits the extent of liability. But with a professional man, the ultimate outcome of those affairs of his client to which his attention has been given, ought to and does have considerable bearing on what he may reasonably charge. If his efforts are marked by success, that is a factor of no mean significance which legally and ethically permits him to place a higher value on his services than if the outcome has been unsatisfactory . . .
. . . [e]ight different elements are stated as those CT Page 11968-d to which consideration may be given in fixing the fair value of an attorney's services. They are:
1. The amount and character of the services rendered.
2. The labor, time and trouble involved.
3. The nature and importance of the litigation.
4. The responsibility imposed upon counsel.
5. The amount of money or value of the property affected by controversy or involved in the employment.
6. The skill and experience called for in the performance of the services.
7. The professional character and standing of the attorney.
8. The results secured.
The First Nat'l Bank Trust Co., Admr. et als. v. Clarence Blakeslee, 5 Conn.Sup. 13, 15 (1937).
In all instances, the attorney acted properly. He did not seek any added compensation.
The court finds all the issues for the plaintiff. The special defense is found for the plaintiff. Plaintiff may recover:Principal $5,327.00 Interest 313.70 Total $5,640.70 Costs may be taxed.
Robert P. Burns
Judge Trial Referee
EXHIBIT
February 6, 2002 CT Page 11968-e Ms. Bonnie Byers 300 Hogan Road Hamden, CT 06518 Re: Lauretta Carroll v: Bonnie ByersDear Ms. Byers:
Thank you for meeting with my partner Gary Sklaver and me to discuss claims which you anticipate Lauretta Carroll's conservator will be making against you. It is reasonable to assume that the conservator will seek full disclosure of the manner in which you handled the financial affairs of Mrs. Carroll and will seek to recover all moneys which you received from her.
With respect to those payments which you made to yourself under Lauretta's power of attorney, the law provides that an attorney-in-fact owes a fiduciary duty to the principal [Mrs. Carroll] and therefore, in your case, the burden of proving the good faith of any transaction with Ms. Carroll will be upon you. This means that the quality of the evidence which you will need to develop in your case is greater than it otherwise would be if you had not been Ms. Carroll's attorney-in-fact and if she had given you the money directly (as was the case with the payments for your children's college expenses)
To prove the correctness of your transactions with Ms. Carroll, we will need to contact those persons you have identified as possible witnesses and to take statements from them. We will need to take each of their depositions.
As we advised you, the defense of this matter and the pursuit of a counterclaim based upon the promissory note will require the expenditure of substantial time and expense. While it certainly is possible that a settlement could be reached at any time, we must begin with the assumption that this case will not settle and will have to be tried. I am estimating that your legal fee in this action could be in the range of $15,000.00 to $25,000.00. This is only an estimate and your actual fee may be more or less than this estimate. I would also estimate that the costs, excluding any expert witness fees, could be in the range of $5,000.00 to $10,000.00.
In order to avoid any misunderstanding, we would like to explain the terms of our representation. If you choose to retain our law firm, we will charge you on an hourly fee basis for services rendered. My hourly fee is $275.00 per hour. It is possible that other attorneys in this CT Page 11968-f office also may work on your file. Attorney Sklaver's hourly fee is $250.00 and Attorney Ullman's hourly fee is $275.00 per hour. We will bill monthly and payment is due and payable within 30 days. In addition, you will be responsible for reimbursing us for any expenses incurred on your behalf. These expenses typically include sheriff's fees for serving legal papers, a court entry fee, record search fees, computer research expenses, copy fees, and fees paid to court reporters during the discovery stage of a case. In addition, if expert testimony is needed for your case, there will he the additional costs of expert witness fees. There also may be miscellaneous expenses which we cannot now anticipate.
We also require a retainer fee of $7,500.00 against which initially we will bill fees and costs. If this is exhausted, you would need to replenish this retainer in increments of $7,500.00.
Finally, in the event that our bills should remain unpaid for 30 days, interest will be charged on the unpaid balance at the rate of 1% per month. If it is necessary to start legal proceedings to collect any unpaid fees or costs, you also will be responsible for the costs of collection including reasonable attorney's fees.
If the terms of our representation as noted above are acceptable to you, would you please indicate your acceptance by signing at the bottom of this letter and returning it to me with the initial retainer fee of $7,500.00. A copy is enclosed for your records.
With best regards, we are,
Very truly yours,
ULLMAN, PERLMUTTER AND SKLAVER
BY
IRVING H. PERLMUTTER
The undersigned retains the firm of Ullman, Perlmutter and Sklaver for the above entitled matter and agrees to the terms of representation as noted above. CT Page 11968-g