Opinion
No. LLI-CV05 400 35 80 S
February 11, 2009
MEMORANDUM OF DECISION RE ATTORNEYS FEES
At issue is whether the court may grant the plaintiff attorneys fees. The court finds that since the plaintiff included attorneys fees language in the complaint, elicited evidence at trial concerning the plaintiff's pursuit of attorneys fees and the amount in question and submitted affidavits itemizing attorneys fees and costs subsequent to trial but prior to a hearing on attorneys fees, the court is not prohibited from awarding the plaintiff reasonable attorneys fees.
FACTS
Before the court is the plaintiff's request for attorneys fees and costs related to a judgment in his favor. Andersson v. Rogers, Superior Court, judicial district of Litchfield, Docket No. CV 05 4003580 (October 1, 2008, Marano, J.). In the memorandum of decision, the court ordered the defendant, Peter Rogers, to comply with the express terms of the restrictive covenant that encumbered his property in favor of the plaintiff, Lars Andersson. The court ordered a hearing concerning the plaintiff's claim for attorneys fees and costs to be later scheduled. The plaintiff introduced an affidavit of attorneys fees dated April 3, 2008 and a supplemental affidavit of attorneys fees dated November 14, 2008. The defendant submitted a memorandum of law regarding attorneys fees and costs dated November 14, 2008. The plaintiff submitted a memorandum of law in support of his request for attorneys fees and costs dated December 12, 2008. A hearing on attorneys fees was held on December 12, 2008.
The easement/covenant at issue contains the following language: "DePecol Development, LLC further covenants and agrees that in the event that DePecol Development, LLC or its successors and assigns violates this easement/covenant, then and in said event, DePecol Development, LLC or its successors and assigns shall pay all costs and expenses incurred by Fawn Meadow, LLC or its successors and assigns as a result of the enforcement of this easement/covenant, including reasonable attorneys fees." (Emphasis added.)
DISCUSSION
"The common law rule in Connecticut, also known as the American Rule, is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception.fn1 (Internal quotation marks omitted.) Commissioner of Environmental Protection v. Mellon, 286 Conn. 687, 695, 945 A.2d 464 (2008). Accordingly, "absent contractual or statutory authorization, each party must pay its own attorneys fees." (Internal quotation marks omitted.) Ernst Steel Corp. v. Reliance Ins. Co., 13 Conn.App. 253, 261, 563 A.2d 969 (1988). "Apart from certain special exceptions, that rule obtains whether the action is legal or equitable in nature, whether the successful litigant is plaintiff or defendant, and even though the necessity of engaging in the litigation was caused by the wrongful act of the opposing party." Brass Line Construction Corp. v. Ryan Crane Service Corp., 32 Conn.Sup. 181, 182, 345 A.2d 594 (1975); Wosczyna v. Estate of Antone, Superior Court, judicial district of Hartford, Docket No. CV 93 0521515 (January 30, 1997, Langenbach, J.) ( 18 Conn. L. Rptr. 671, 672).
"[The Supreme] [C]ourt . . . has recognized a bad faith exception to the American [R]ule, which permits a court to award attorneys fees to the prevailing party on the basis of bad faith conduct of the other party or the other party's attorney." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 178, 851 A.2d 1113 (2004). "[Another] exception to this general rule is that attorneys fees may be awarded as a component of punitive damages . . . Punitive damages may be awarded upon a showing of fraud." (Citation omitted.) O'Leary v. Industrial Park Corp., 211 Conn. 648, 651, 560 A.2d 968 (1989). "The [purpose] of awarding punitive damages is not to punish the defendant for his offense, but to compensate the plaintiff for his injuries . . . The rule in this state as to torts is that punitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights . . . An award of punitive damages is discretionary, and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done." (Citation omitted; internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn.App. 719, 730, 916 A.2d 834 (2007). "Punitive damages consist of a reasonable expense properly incurred in the litigation . . . less taxable costs." (Citation omitted.) Markey v. Santangelo, 195 Conn. 76, 80, 485 A.2d 1305 (1985).
In his memorandum of law regarding attorneys fees and costs, the defendant argues that the plaintiff is not entitled to attorneys fees because: (1) the plaintiff did not specifically allege a request for attorneys fees in the complaint's prayer for relief; (2) the plaintiff did not present "at the time of trial, a statement of the fees requested and a description of the services rendered;" and (3) the plaintiff "effectively withdrew his claim for attorneys fees and costs when counsel represented to both Judge Pickard and defendant counsel that such claims were no longer being pursued."
In his memorandum of law in support of his request for attorneys fees and costs, the plaintiff argues that he is entitled to attorneys fees and costs because: (1) "[a] plaintiff who claims 'damages' and 'such other relief as in law and equity may appertain' in the ad damnum section of his complaint is entitled to an award of reasonable attorneys fees;" (2) his "claim of attorneys fees, raised before he rested and substantiated prior to the conclusion of the trial, was timely;" and (3) he only offered to withdraw his claim for attorneys fees in pretrial settlement negotiations which were "conditioned on the parties reaching a settlement, which did not occur."
"It is axiomatic that attorneys fees are recoverable as an item of damages when allowed by statute or contract." State v. Bloomfield Construction Co., Inc., 126 Conn. 349, 359, 11 A.2d 382 (1940). "[W]hen prosecuting a civil matter, the general rule is that a prayer for relief must articulate with specificity the form of relief that is sought . . . A party who fails to comply with this rule runs the risk of being denied recovery." (Internal quotation marks omitted.) Levesque Builders, Inc. v. Hoerle, 49 Conn.App. 751, 758, 717 A.2d 252 (1998).
"It is generally true[, however,] . . . that the allegations of the complaint provide the measure of recovery, and that the judgment cannot exceed the claims pleaded, including the prayer for relief . . . These requirements . . . are based on the principle that a pleading must provide adequate notice of the facts claimed and the issues to be tried . . . The fundamental purpose of these pleading requirements is to prevent surprise of the defendant . . . The purpose of these general pleading requirements is consistent with the notion that the purpose of specific pleading requirements, such as Practice Book § 109A(a), is to promote the identification, narrowing and resolution of issues before the court." (Citations omitted; internal quotation marks omitted.) Todd v. Glines, 217 Conn. 1, 9-10, 583 A.2d 1287 (1991).
In Francis T. Zappone Co. v. Mark, 197 Conn. 264, 269-70, 497 A.2d 32 (1985), the "plaintiff . . . cross appealed from the trial court's failure to award attorneys fees. There was an allegation in the complaint that there [was] presently due and owing the sum of $20,000 together with interest, costs and reasonable attorneys fees. However, there was no specific claim for attorneys fees in the prayer for relief. In addition no evidence was produced at the hearing. The plaintiff did not request attorneys fees during the trial or during the postjudgment hearing. It made no attempt to bring the issue before the trial court." The court held that "[i]n the absence of any claim for attorneys fees in the prayer for relief, and without any offer of evidence during the trial, the trial court did not err in not making such an award." (Emphasis added.) Id., 270.
In Bushnell Plaza Development Corp. v. Fazzano, 38 Conn.Sup. 683, 687, 460 A.2d 1311 (1983), "[t]he prayer for relief in the original complaint sought to recover attorneys fees. In response to the defendant's motion to strike the claim for attorneys fees, the plaintiff submitted an amended complaint deleting this item from its prayer for relief." The court held that the exclusion of attorneys fees was proper for "failure to allege [the] claim in the complaint." (Emphasis added.) Id., 688. " The complaint contained no allegations regarding attorneys fees. In a similar situation, we held that no judgment could be rendered, therefore, awarding counsel fees . . . since the matter was wholly outside the issues raised by the pertinent pleadings . . . Where a lease provides for costs and attorneys fees in connection with the collection of holdover rentals, we would not hesitate to assess such expenditures . . . In this instance, however, a novation and failure to allege attorneys fees and costs preclude our assessing such damages." (Citations omitted; emphasis added; internal quotation marks omitted.) Id.
In the present case, similar to Francis T. Zappone Co. v. Mark, supra, 197 Conn. 270, the plaintiff did not make a "specific claim" for attorneys fees in the prayer for relief. The plaintiff has, however, raised the issue of attorneys fees in the complaint by including in it language of the easement/covenant which provides for reasonable attorneys fees. "[P]leadings [are] to be read broadly and realistically, not narrowly and technically." Todd v. Glines, supra, 217 Conn. 10, citing LeConche v. Elligers, 215 Conn. 701, 716, 579 A.2d 1 (1990). In Bushnell Plaza Development Corp. v. Fazzano, supra, 38 Conn.Sup. 688, the court looked to whether the party claiming attorneys fees alleged such in his complaint, which the plaintiff has done here. The defendant acknowledges in his memorandum regarding attorneys fees and costs that the plaintiff "references the language of the covenant, including reference to attorneys fees," in the complaint. As such, the defendant here may be deemed to be on notice of the plaintiff's claim for attorneys fees in the complaint.
The defendant further acknowledges in his memorandum that testimonial evidence was presented at trial by the plaintiff in his claim for costs and attorneys fees through the testimony of Andersson. It is significant that the court in Francis T. Zappone Co. went past the issue of whether attorneys fees were requested in the prayer for relief to consider whether the plaintiff raised the issue of attorneys fees at trial or the postjudgment hearing. Unlike Francis T. Zappone Co. v. Mark, supra, 197 Conn. 270, where the plaintiff did not request attorneys fees "during the trial," here the plaintiff did request such at trial and in a postjudgment hearing. "[The plaintiff] made [an] attempt to bring the issue before the trial court." Id. Accordingly, as the easement/covenant provided for reasonable attorneys fees in this situation, the defendant was on notice that the easement/covenant provided for attorneys fees, the defendant was on notice that the plaintiff was seeking such attorneys fees by its inclusion in the complaint and the plaintiff put on evidence at trial of his attorneys fees claim, the plaintiff is entitled to an award of reasonable attorneys fees.
The defendant secondarily argues that attorneys fees may not be awarded here because the plaintiff did not submit sufficient evidence of the reasonableness of such fees during trial. The defendant, citing Smith v. Snyder, 267 Conn. 456, 839 A.2d 589 (2004), and Northeast Tank Environmental Services, Inc. v. TA Operating Corp., Superior Court, judicial district of New Britain, Docket No. CV 06 500 1541 (August 8, 2008, Domnarski, J.) [ 46 Conn. L. Rptr. 124], argues the plaintiff should have presented a "statement of the fees requested and a description of the services rendered," which would have allowed the defendant the "opportunity to challenge the amount requested."
"Our Supreme Court has stated that a party seeking attorneys fees must satisfy the undisputed requirement that the reasonableness of attorneys fees and costs . . . be proven by an appropriate evidentiary showing . . . This protects the opposing party's right to litigate fully the reasonableness of the attorneys fees." (Citations omitted; internal quotation marks omitted.) Levesque Builders, Inc. v. Hoerle, supra, 49 Conn.App. 759-60.
Unlike Levesque Builders, Inc. v. Hoerle, where "no hearing was held and neither the plaintiff nor the defendant presented any testimony or other evidence concerning the claim of reasonable attorneys fees," here the plaintiff elicited at trial the testimony of Andersson who testified to having paid 'lust shy of $20,000" in legal fees prior to trial. Id., 760. The defendant was given the opportunity to cross-examine Andersson at trial. Prior to the post-trial hearing on attorneys fees, the plaintiff introduced an affidavit of attorneys fees dated April 3, 2008 and a supplemental affidavit of attorneys fees dated November 14, 2008 that provided itemized costs of attorneys fees and services. The defendant filed a brief in opposition to the award of attorneys fees and was heard at a hearing on the matter on December 12, 2008. Accordingly, the defendant has had the "right to litigate fully the reasonableness of the attorneys fees" and their imposition on the defendant here is not unreasonable or against established law. Id.
Finally, the defendant claims that attorneys fees are inappropriate in this case because the plaintiff's counsel represented in a pretrial conference that he was not seeking attorneys fees. In Todd v. Glines, supra, 217 Conn. 11, the court found that it was required to award statutory attorneys fees based on the plaintiff receiving a damages award from the jury, even where the plaintiff only requested money damages in her prayer for relief. The court held it was "not a case in which the specification of the particular fees awarded would have aided the identification, narrowing and resolution of issues . . . [T]he defendants cannot fairly be regarded as having been disadvantaged or surprised by the plaintiff's failure to request such fees because they were automatically triggered [by statute] by a verdict for the plaintiff. Thus, they were a factor that the defendants could not have affected, whether or not the plaintiff's complaint specifically claimed them. We conclude, therefore, that the award of fees was proper in this case despite the absence of a specific request for them in the plaintiff's pleadings." Id., 11-12.
"It is axiomatic that attorneys fees are recoverable as an item of damages when allowed by statute or contract." State v. Bloomfield Construction Co., Inc., supra, 126 Conn. 359.
In the present case, the plaintiff's counsel stated on record at trial that any pretrial discussion of withdrawing a claim of attorneys fees was purely in the nature of settlement negotiations. Unlike in Todd v. Glines, the defendant here was on notice of the plaintiff's claim for attorneys fees by the easement/covenant language in the complaint and the plaintiff's discussion of a claim of attorneys fees in a pretrial conference. The defendant has not provided any evidence of the alleged statement at a pretrial conference by the plaintiff's counsel stating that he was no longer pursuing attorneys fees. Further, the defendant was given an opportunity not only to cross-examine Andersson at trial on his claim of attorneys fees but also to argue against attorneys fees and costs at the postjudgment hearing. In this regard, the "defendant cannot fairly be regarded as having been disadvantaged or surprised." Id., 11.
Accordingly, the plaintiff is awarded reasonable attorneys fees in the amount of $16,000.00 pursuant to the language of the easement/covenant contained in the complaint, the evidence presented at trial by Andersson, the plaintiff's affidavit and supplemental affidavit on attorneys fees and the evidence presented by the plaintiff at the post-trial hearing on attorneys fees.
So ordered.