Opinion
KNLCV156024218
09-04-2019
Lee WINAKOR v. Vincent SAVALLE
UNPUBLISHED OPINION
OPINION
FRECHETTE, J.
The plaintiff has moved for attorneys fees and costs incurred in the prosecution and defense of the counter-claim in this action. For the reasons which follow, the court grants said motion.
The plaintiff filed a five-count complaint in this case. Count One alleges breach of contract; Count Two alleges unjust enrichment; Counts Three and Four allege violations of the Home Improvement Act (HIA); and Count Five alleges a violation of CUTPA. Paragraphs Five and Six of all the counts allege that "the defendant never provided the Plaintiff with a contract that complied with [the HIA]," and that as a result "the Plaintiff, a lay person, took it upon himself to draft a contract." The defendant specifically denied these allegations, requiring the plaintiff to present voluminous evidence to prove them. Further, paragraph seven alleges that the contract drafted by the plaintiff specified the work the defendant would perform and the cost thereof, and paragraph eight actually attaches the contract which was signed by the defendant. Again, the defendant denied these allegations, and specifically denied that he signed the 2012 contract referred to in paragraph eight. This forced the plaintiff to hire a handwriting expert and present other evidence to prove that the defendant did indeed sign the contract. Astoundingly, this expert, James Streeter, was previously hired and disclosed by the defendant to show that the signature on the contract was not that of the defendant. When the expert concluded that the signature was, indeed, the defendant’s, the plaintiff naturally disclosed Mr. Streeter as the plaintiff’s expert. In the face of this overwhelming evidence, the defendant still insisted that the signature was not his. This necessitated the submission of extensive evidence and testimony on this issue, all of which could have been avoided if the defendant had complied with the HIA. Moreover, the plaintiff credibly testified that he repeatedly requested the defendant submit a written contract for his signature but was repeatedly rebuffed by the defendant. As articulated in the court’s decision, the defendant brazenly testified that he refused in general to use written contracts, whether required by law or not. The contract, because it was drafted by a layperson, lacked detail and specificity regarding how the contract was to be performed. Had the defendant complied with the HIA and produced a written contract most of the disputes about how the work was to be done and, importantly, the scope of the work, could have been avoided.
The court will not repeat its analysis concerning the applicability of the HIA to the defendant’s services and work on the plaintiff’s property. The defendant performed many tasks which are clearly covered by the HIA and which require compliance with the act.
The issue of the defendant’s purported exemption from the HIA because he is licensed to install septic systems is a red herring for two reasons: (1) he performed many other tasks which were entirely separate from and in no way ancillary to the septic system; and (2) the General Statutes § 20-428(4) exemption does not apply, as that exemption only applies to "a person holding a current professional or occupational license ... provided such person engages only in that work for which such person is licensed or registered ." (Emphasis added.) The evidence clearly showed that the defendant engages in work other than septic systems both in general and on the property in this case.
A violation of the HIA is a per se violation of CUTPA; General Statutes § 20-427(c); and the plaintiff proved that the defendant’s practice was an unfair trade practice and caused damage to the plaintiff. Additionally, the defendant filed a counter-claim in which he alleged, inter alia, that: "1. Lacking permits, blueprints, and a signed agreement with his general contractor, Brian Mawdsley, the plaintiff prevailed upon the defendant to perform specified grading and excavation services on a time-and-material basis." These are the same "grading and excavation services" which formed the basis of the plaintiff’s complaint. The plaintiff had to defend and present evidence against this counter-claim as well. Again, no written contract is alleged by the defendant, which is, of course, itself a violation of the HIA. Finally, in paragraph thirteen through fifteen of the plaintiff’s complaint he alleged that the defendant signed a second contract (in January 2014) after he failed to fulfill the original contract. Again, the defendant in his answer denied the existence of this contract, but ultimately admitted on the stand that he did sign this second contract in January of 2014. (The handwriting expert also testified that the signature on the second contract was the defendant’s signature.) This second contract also did not comply with the HIA.
"Whether any attorneys fees should be awarded in a CUTPA case is a matter of discretion for the trial judge ... CUTPA’s attorneys fee provision is intended to enable private parties to obtain counsel to enforce the statutory prohibition on unfair trade practices." (Internal citation omitted.) Freeman v. A Better Way Wholesale Autos, Inc., 191 Conn.App. 110, 115 (2019) (appendix). "The initial estimate of a reasonable attorneys fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times the reasonable hourly rate ... The courts may then adjust this lodestar calculation by other factors [outlined in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)] ... The Johnson court set forth twelve factors for determining the reasonableness of an attorneys fee award, and they are: the time and labor required; the novelty and difficulty of the questions; the skill requisite to perform the legal services properly; the preclusion of other employment by the attorney due to acceptance of the case; the customary fee; whether the fee is fixed or contingent; time limitations imposed by the client or the circumstances; the amount involved and the results obtained; the experience, reputation and ability of the attorneys; the ‘undesirability’ of the case; the nature and length of the professional relationship with the client; and awards in similar cases." (Internal citations omitted; internal quotation marks omitted.) Id. at 116-17.
The court held an evidentiary hearing on August 19, 2019, at which time the court considered the testimony of both plaintiff’s and defendant’s counsel and documentary evidence. Plaintiff’s counsel submitted a detailed bill (Exhibit 3) that was submitted to his client and offered credible testimony in support of his motion for attorneys fees and costs. Plaintiff’s counsel is an experienced litigator and his hourly rate of $300.00 an hour is, if anything, modest. The hours submitted were more than justified. The defendant bitterly contested virtually every element of the plaintiff’s case, forcing a great deal of time and effort by the plaintiff in order to prove his case and defend against the defendant’s counter-claim.
This was a very long trial, approximately eleven days of evidence. The defendant contested virtually every issue, requiring the plaintiff to go to great lengths and expense to prove matters upon which there was virtually no reasonable dispute, such as the contract itself. Had the defendant complied with the HIA, most of these issues would not have arisen. The court finds that apportioning attorneys fees based on the CUTPA claim alone would be "impermissibly difficult, as the fact and circumstances which gave rise to the other claims all related to the ... CUTPA violations, and all of [the] plaintiff’s claims arose out of the home improvement activities performed by the defendant as defined by the [HIA]." Taylor v. King, 121 Conn.App. 105, 132, 994 A.2d 330 (2010). The law is clear that "when the facts underlying the CUTPA claim are indistinguishable from those facts relating to other claims, § 42-110g(d) encompasses claims related to the prosecution of a CUTPA claim ... not only one claim expressly labeled as a CUTPA claim." (Internal quotation marks omitted.) Id., 131.
Considering the factors set forth in Freeman, the bill submitted by plaintiff’s counsel is more than reasonable. Accordingly, the court awards attorneys fees in the amount of $126,126.91, plus costs in the amount of $2,412.05. These amounts are as of August 6, 2019. The plaintiff may make claims for attorneys fees after that date after the appeal of this matter is decided. See Freeman, supra.