Opinion
No. X06 CV 04 0184523 S
October 31, 2008
MEMORANDUM OF DECISION ON THE PLAINTIFF'S CLAIMS FOR ATTORNEY FEES AND PUNITIVE DAMAGES
STATEMENT OF THE CASE
The plaintiff in this action, Bridgeport Harbour Place I, LLC (BHP), filed a ten-count second revised complaint (complaint) against fourteen defendants. The gravamen of the complaint is the plaintiff's claim that the city of Bridgeport breached a November 1998 agreement with the plaintiff for the plaintiff to develop property located in the city and known as Steel Point. The plaintiff alleges among its claims that the defendant Joseph Ganim, the then city mayor, had a secret plan with other defendants to oust the plaintiff as the developer of the project so that it could be replaced by the defendant United Properties, Ltd. United Properties was owned or controlled by the defendants Alfred Lenoci Sr. and Alfred Lenoci Jr. The complaint charges that the Lenocis had agreed to pay bribes to Ganim in exchange for the selection of United Properties as the developer of Steel Point. Complaint. ¶¶ 46,47. The complaint alleges that the other defendants either participated in this plan or wrongly facilitated it.
A detailed discussion of the complaint's allegations has been provided previously by the court and it is not necessary for it to be repeated here. See Memorandum of Decision on the Plaintiff's Motion For Additur And Motion to Set Aside the Verdict, filed October 31, 2008.
The case was tried to a jury over a four-month period and involved nineteen witnesses, forty-one days of evidence and argument, and ten days of jury deliberation. As to the defendants Alfred Lenoci, Jr. and Alfred Lenoci, Sr. (Lenoci defendants), the jury rendered a verdict against them and the defendant United Properties on count II alleging tortious interference with contractual relations, and awarded $10,000 against each of these defendants. The jury also rendered a verdict against the Lenoci defendants on count IX alleging violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a (CUTPA), and awarded $10,000 against each of them. As to the defendant Joseph Ganim, the jury rendered a verdict against him on count VIII alleging fraudulent misrepresentation, and awarded $182,000 against him on this count. A default for failure to plead entered against the defendant Kasper Group, Inc., and the jury awarded $134,524 against this defendant on count III of the complaint. The jury's verdict was in favor of the other defendants whose matters proceeded to trial.
The compensatory damages awarded against the Lenoci defendants under counts II and IX of the complaint generally parallel the jury's finding that the plaintiff did not substantially perform its obligations under the development agreement. This finding was made by the jury in response to the city of Bridgeport's interrogatory submitted to the jury on the plaintiff's breach of contract claim against the city. The court also notes that this finding in turn may be compared to the court's conclusion that the plaintiff could not recover lost profits because this claim was too contingent and speculative. See Memorandum of Decision on the Defendants' Motions in Limine to Preclude Evidence of Lost Profits, filed January 25, 2008.
The court issued an order bifurcating the issues of attorney fees and punitive damages so that these claims would be adjudicated after the jury first determined whether there was a finding on any count of the complaint warranting the recovery of such damages. Because of the jury's verdicts against the Lenoci defendants under count IX and Ganim under count VIII, further evidentiary proceedings were held before the court on the plaintiff's claims for attorney fees and punitive damages. CUTPA requires the court, not the jury, to decide claims for attorney fees and punitive damages. General Statutes § 42-110g. The plaintiff and Ganim stipulated that the court would determine the punitive damages claim against Ganim based on the verdict against him for fraudulent misrepresentation.
The court notes that punitive damages are not at issue against the Lenoci defendants under count II of the complaint alleging tortious interference with contractual relations because the plaintiffs did not seek punitive damages under this count. It is further noted that the court granted defendant Ganim's motion to strike the plaintiff's CUTPA claim asserted against him under count IX of the complaint.
General Statutes § 42-110g (a) provides the following in relevant part: "The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper."
General Statutes § 42-110g (d) provides the following in relevant part: "In any action brought by a person under this section, the court may award, to the plaintiff . . . costs and reasonable attorney's fees based on the work reasonably performed by an attorney and not on the amount of recovery."
Under count VIII of the complaint alleging fraudulent misrepresentation, the court awards in favor of the plaintiff, Bridgeport Harbour Place I, LLC, and against the defendant Joseph Ganim, punitive damages of $210,039, less taxable costs. Under count IX of the complaint alleging violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a, the court awards in favor of the plaintiff, Bridgeport Harbour Place I, LLC, attorney fees of $650,000 and costs of $155,439 against the defendants Alfred Lenoci, Sr. and Alfred Lenoci, Jr.; and punitive damages of $60,000 against the defendant Alfred Lenoci, Sr. and punitive damages of $60,000 against the defendant Alfred Lenoci, Jr.
DISCUSSION I ATTORNEY FEES AND PUNITIVE DAMAGES UNDER CUTPA A ATTORNEY FEES AND COSTS
General Statutes § 42-110g (d) provides that "[i]n any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys' fees based on the work reasonably performed by an attorney and not on the amount of recovery." "The cases interpreting the attorney's fees provision of CUTPA also indicate that the awarding of attorneys' fees is within the discretion of the trial court." Staehle v. Michael's Garage, Inc., 35 Conn. App. 455,460, 646 A.2d 888 (1994). "The statute contains no standard by which a court is to award attorneys' fees, thus leaving it to the sole discretion of the trial court to determine if attorneys' fees should be awarded and the amount of such award." Id., 461. The court's discretionary decision to award attorney fees should be premised on reasonable determinations and tenable grounds. See Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 800, 720 A.2d 242 (1998). "A court has few duties of a more delicate nature than that of fixing counsel fees." Laudano v. New Haven, 58 Conn. App. 819, 822,755 A.2d 907 (2000). The difficulty in determining attorney fees is particularly acute in this case involving multiple claims, parties and complexities.
The court concludes that an award of attorney fees is warranted because of the nature and complexity of this case, as well as the policy concerns of CUTPA. "The public policy underlying CUTPA is to encourage litigants to act as private attorneys general and to engage in bringing actions that have as their basis unfair or deceptive trade practices. In order to encourage attorneys to accept and litigate CUTPA cases, the legislature has provided for the award of attorney fees and costs." (Citation omitted; internal quotation marks omitted.) Thames River Recycling, Inc. v. Gallo, supra, 50 Conn. App. 794-95. The jury found that the Lenoci defendants committed an unfair or deceptive trade practice involving bribes to a public official in order to interfere with the development of a municipal construction project. An award of attorney fees in this case is particularly appropriate to encourage the prosecution of CUTPA cases involving such corrupt business practices.
As previously stated, CUTPA does not delineate any precise criteria to determine the amount of an attorney fee award. The statute does state that the award must be based on "work reasonably performed" and "not on the amount of recovery." General Statutes § 42-110g (d). The cases, therefore, uniformly hold that the amount of the actual damages awarded does not control the recovery of attorney fees, and attorney fees may be awarded even without the recovery of actual damages. See Service Road Corp. v. Quinn, 241 Conn. 630, 644, 698 A.2d 258 (1997) ("[t]he fact that a plaintiff fails to prove a particular loss or the extent of the loss does not foreclose the plaintiff from obtaining . . . attorneys' fees pursuant to CUTPA.")
The statutory mandate precluding attorney fees from being based "on the amount of the recovery" also indicates that the fee cannot be calculated on the basis of the contingency fee agreement between the plaintiff and its counsel. Such a calculation is precluded by the statutory mandate because by definition, a contingency fee is based on a percentage of "the amount of the recovery." See Fabri v. United Technologies International, Inc., 193 F. Sup. 2d 480,484 (D. Conn. 2002), aff'd in part, 387 F.3d 109, (2d Cir. 2004); accord Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210,271 n. 77, 828 A.2d 64 (2003). Consequently, although the fee agreement may be a relevant consideration, the court rejects the Lenoci defendants' argument that the attorney fee calculation under CUTPA should be premised on or even necessarily consistent with the plaintiff's contingency fee agreement with its counsel.
The case relied on by the Lenoci defendants, Riggio v. Orkin Exterminating Co., 58 Conn. App. 309, 753 A.2d 423, cert. denied, 254 Conn. 917, 759 A.2d 507 (2000), is distinguishable. In Riggio, the trial court considered the twelve factors under Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), to conclude that the amount of the one-third fee agreement was a reasonable fee under the circumstances of that case. Id., 317-19. Consequently, the Appellate Court's affirmance of the trial court's decision stands for the unremarkable proposition that in determining what is a reasonable attorney fee, the trial court does not abuse its discretion by considering a contingency fee agreement.
"The initial estimate of a reasonable attorney's fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. The courts may then adjust this lodestar calculation by other factors." (Internal quotation marks omitted; citations omitted.) Laudano v. New Haven, supra, 58 Conn. App. 822. In adjusting the lodestar calculation, the court should "exclude from this initial fee calculation hours that were not `reasonably expended;'" (citation omitted) Hensley v. Eckerhart, 461 U.S. 424, 434 (1983); and the court should also increase or decrease the fee calculation by considering the full panoply of the criteria set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). See Laudano v. New Haven, supra, 58 Conn. App. 822-23.
In Steiger v. J. S. Builders, 39 Conn. App. 32, 39, 663 A.2d 432 (1995), the Appellate Court held that the Johnson guidelines are applicable in determining reasonable attorney fees under CUTPA. Those factors are as follows: "(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." Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d 717.
In this case, the plaintiff was represented by three attorneys. These attorneys have submitted affidavits and itemizations of the services rendered and the time expended. These fees total approximately $1,561,926, representing approximately 5,044 hours of service, which includes the fees and time attributed to associates and paralegals. Thus, the blended hourly rate for the services claimed by the plaintiff is approximately $310.
According to the affidavits of the plaintiff's counsel (Trial Exhibits 1490,1491 and 1492), Attorney Sweeney claims $449,666 for 1,347 hours of service; Attorney Gallagher claims $446,766 for 1,391 hours of service; and Attorney Halloran claims $665,494 for 2,306 hours of service. As stated above, these hours include the services provided by other attorneys and paralegals who were billed at hourly rates less than these trial attorneys. Attorney Gallagher billed at an hourly rate of $400. Attorney Halloran and Attorney Sweeney billed at an hourly rate of $375. The court also notes that the Lenoci defendants have not objected to the plaintiff's claim that fees for paralegal service are recoverable.
The Lenoci defendants do not seriously contest the hourly rates being claimed by the plaintiff's counsel. Certain factors of the Johnson criteria are particularly relevant to the determination of the appropriate hourly rate, namely, the novelty and difficulty of the issues, the skills required to perform the legal service, the preclusion of other employment by the attorney due to acceptance of the case, and the customary fee for similar work in the community. After review of the parties' positions and the factors relevant to this consideration, the court concludes, especially in light of the complexity and time intensity of this difficult case, that an hourly rate of $325 is a fair rate in this case, which is slightly higher than the blended hourly rate evidenced by the plaintiff's submissions.
The plaintiff also claims $370,092 for litigation expenses. Neither Ganim nor the Lenoci defendants have asserted any specific objections to this claim for expenses. Additionally, the plaintiff claims $2,378.96 in taxable costs under General Statutes § 52-257.
The Lenoci defendants sharply contest the amount of time being claimed and the total amount of the fees being sought. These defendants first argue that "a considerable across the board reduction is warranted based on duplicative effort by three attorneys for the plaintiff." Lenoci Defendants' Reply to Plaintiff's Memorandum In Support of Attorneys' Fees and Punitive Damages, dated September 2, 2008, p. 11. The court agrees with the defendants that there should be an across the board reduction based on the attorneys' duplicative efforts, but any such reduction should not be "considerable" as claimed by the defendants, except for the services involving jury selection. Because of the difficulty and complexity of this case, the plaintiff was justified in retaining these attorneys to prosecute the various claims against multiple parties, and some overlap of counsel's efforts was inevitable due to the nature of the case and the need to co-ordinate the work. This need, however, does not apply to the simultaneous presence of two or three attorneys throughout most of jury selection. Jury selection in this case took nine days, and the attorney fee affidavits indicate that the plaintiff claims at least $64,000 for jury selection alone. The amount of this fee caused by the duplicative work of the plaintiff's counsel is unreasonable. This issue does not concern whether the time was properly documented or actually expended, but concerns the reasonableness of requiring the defendants to pay for these efforts. Thus, the court will apply an across the board reduction of the hours claimed by the plaintiffs, and this overall reduction will reflect a specific reduction for the time spent on jury selection. See generally Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (citations omitted; internal quotation marks omitted) ("[h]ours that are excessive, redundant, or otherwise unnecessary, are to be excluded, . . . and in dealing with such surplusage, the court has discretion simply to deduct a reasonable percentage of the number of hours claimed as a practical means of trimming fat from a fee application.")
The Lenoci defendants next argue that the plaintiff's attorney fee claim must be reduced to exclude all time related to the plaintiff's prosecution of claims against other defendants, particularly as to the claims on which the plaintiff did not prevail. See Lenoci Defendants' Reply to Plaintiff's Memorandum In Support of Attorneys' Fees and Punitive Damages, supra, pp. 11-23. The plaintiff disagrees. The plaintiff contends that all the fees associated with the prosecution of the claims against the other defendants may be recovered against the Lenoci defendants because all the claims were factually connected and cannot be segregated. See Plaintiff's Memorandum in Support of Attorneys' Fees and Punitive Damages, pp. 7-11. Neither of the parties' positions is entirely correct.
CUTPA authorizes the recovery of attorney fees "solely to claims related to the prosecution of a CUTPA claim and not to all claims. In the absence of abuse of discretion, the court can award attorney's fees under CUTPA only for expenses that [are] related to the prosecution of a CUTPA claim." Jacques All Trades Corp. v. Brown, 57 Conn. App. 189,200, 752 A.2d 1098 (2000). In exercising its discretion under CUTPA, a court may include as part of the attorney fee award expenses that are associated with non-CUTPA or unsuccessful claims when all of these claims are related, meaning that they are premised on essentially the same transactions or when their facts are inextricably connected or intertwined. See Heller v. D. W. Fish Realty Co., 93 Conn. App. 727, 735-36, 890 A.2d 113 (2006). Consequently, although CUTPA only authorizes a plaintiff to recover attorney fees if the plaintiff prevails on its CUTPA claim, there is no automatic or per se rule that attorney fees must be reduced if the plaintiff fails to prevail on the entirety of its complaint. Cf. Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172,194, 510 A.2d 972 (2000) (there is no general rule that "an award of [statutorily allowed.] attorney's fees must automatically be reduced if its recipient fails to prevail on all of his claims at trial.") (construing the Connecticut Uniform Securities Act, General Statutes § 36-498.)
In Heller v. D. W. Fish Realty Co., supra, 93 Conn. App. 735-36, the Appellate Court concluded that the trial court erred in directing the plaintiffs to provide evidence apportioning their attorney fees among their breach of contract, negligence and CUTPA claims, when all the claims depended on the same facts, holding that CUTPA allows attorney fees to be recovered on "claims related to the CUTPA claims; not only one claim explicitly labeled as a CUTPA claim." (Citation omitted; internal quotation marks omitted.) Id.
A key consideration in evaluating these issues is the overall extent of the success achieved. "Where a party succeeds on his [statutory] claim, but fails on other claims brought in the same suit, the size of his [attorney fee] award should reflect his success, as determined by the trial court, in securing redress for the injuries that prompted his [statutory] claim and reasonable legal cost incurred in pursuing this success." Id., 195. Consequently, even when the plaintiff's claims are "interrelated," the lodestar amount may be excessive when the plaintiff "has achieved only partial or limited success. . . . Again, the most critical factor is the degree of success obtained." Hensley v. Eckerhart, supra, 461 U.S. 436.
Thus, the court rejects the plaintiff's argument that it may recover all fees expended on non-CUPTA claims solely because they may relate to the CUTPA claims, without any consideration of or focus on the overall results actually achieved in light of all the claims pursued and the relief sought. The court also rejects the defendants' argument that the attorney fee must be reduced simply because the plaintiff pursued non-CUTPA claims or did not prevail on all of its contentions. As just explained, the plaintiff may recover attorney fees for time spent on non-CUTPA claims and unsuccessful matters that are sufficiently related to the prevailing CUTPA claims to the extent that the amount of the award is reasonable in relation to the overall success obtained and the other factors bearing on the determination.
"In this situation, two questions must be addressed. First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?" Hensley v. Eckerhart, supra, 461 U.S. 434. Thus, the next task of this analysis is to evaluate the extent to which the plaintiff's non-CUTPA and unsuccessful claims are related to the CUTPA claim on which it prevailed.
In count IX of the complaint, the plaintiff's CUTPA claim is asserted against the Lenoci defendants, Michael Schinella, Joseph Kasper, Jr., Kasper Group, Inc., HNTB and Ganim. In this count, the plaintiff alleged that these defendants participated in a scheme in which bribes were paid to a public official, Ganim, to interfere with the plaintiff's rights under the development agreement and to insert the Lenoci defendants as the developer of the project. The plaintiff withdrew its CUTPA claim against Kasper Group, Inc., and withdrew all of its claims against Michael Schinella. The jury found in favor of Joseph Kasper, Jr., and the court granted HNTB's motion for directed verdict on statute of limitations grounds. Nevertheless, despite these dispositions, the CUTPA claim against these defendants is obviously related and connected to the CUTPA claim against the Lenoci defendants.
The court granted Ganim's motion to strike the CUTPA claim against him. In count VIII, however, Ganim, Charles Willinger and Willinger, Willinger Bucci, also were charged with fraudulent misrepresentation. On this count, the jury's verdict was against Ganim and in favor of Willinger and his law firm. In counts I and II, the plaintiff alleged tortious interference with contractual relations against various defendants, and prevailed on this claim only as to the Lenoci defendants. In count X, the plaintiff alleged statutory theft against various defendants under General Statutes § 52-564. As to all the defendants named in count X, either the court granted summary judgment in their favor or the plaintiff withdrew this count against them. The court agrees with the plaintiff that the claims asserted against these other defendants and the CUTPA claims asserted against the Lenoci defendants are sufficiently interconnected to allow consideration of all of these matters as part of the attorney fee award against the Lenoci defendants.
Count I, alleging tortious interference with contractual relations, was asserted against the defendants Charles J. Willinger, Jr., and his law firm, Willinger, Willinger Bucci (the Willinger defendants). Count II alleged tortious interference with contractual relations against the defendants Alfred Lenoci, Sr., Alfred Lenoci, Jr., Michael Schinella, United Environmental, United Properties, Ltd., 815 Lafayette Centre, LLC, United Investments, LLC, and Crescent Avenue Development, LLC.
Count X, alleging statutory theft, was asserted against the defendants Alfred Lenoci, Sr., Alfred Lenoci, Jr., Ganim, the Willinger defendants, Joseph Kasper, Jr., Kasper Group, Inc. and Schinella.
The causes of action asserted against the city of Bridgeport, however, stand differently. There certainly were overlapping factual issues among the claims made against the city and the other defendants sufficient to promote judicial economy by a single trial of these claims. However, contrary to the plaintiff's contention, simply because there is an overlap of the evidence between the CUTPA and non-CUTPA claims does not automatically mean that the claims themselves are sufficiently intertwined or interrelated to warrant their consideration as part of the attorney fee calculation. Fabri v. United Technologies International, Inc., 387 F.3d 109, 130 ("the district court's reliance on facts proven in support of other claims to justify the CUTPA verdict does not establish that those claims were interrelated with the CUTPA claim.")
Against the city, the plaintiff asserted negligence, breach of contract, breach of the covenant of good faith and fair dealing and quantum meruit. The court granted summary judgment in favor of the city on the negligence claim. The jury entered its verdict in favor of the city on the remaining claims. There should be a reduction of the attorney fee award for the time associated with the plaintiff's prosecution of these claims against the city because these claims are qualitatively different from the claims against the other defendants. As compared to the other non-CUTPA claims, the causes of action asserted against the city involved different elements, theories and defenses, and could have been most easily tried separately from the CUTPA claims. The following examples evidence these points.
In order to prevail on its contract and quantum meruit claims against the city, the plaintiff was required to prove that Ganim acted on behalf of the city and that those acts were committed within the scope of his authority. That Ganim was acting within the scope of his authority for the city was an essential element of the plaintiff's contract and the quantum meruit claims. Yet the plaintiff's proof that Ganim made fraudulent misrepresentations as part of a scheme to interfere with the development agreement between the city and the plaintiff is starkly at odds with any proof that he was acting on behalf of the city. Additionally, as evidenced by the answers to jury interrogatories, the jury decided against the plaintiff on its contract claims because the plaintiff failed to prove that it had substantially performed its obligations under the contract. The city's motion for summary judgment on the negligence count was granted on the basis of the discretionary function doctrine. None of these grounds, or any of the other special defenses pleaded by the city, bear any legally significant relationship to the claims asserted against or the defenses raised by the other defendants.
Moreover, the plaintiff's argument that there is no reasonable way to segregate the time associated with the prosecution of its claims against the city is not well explained, but in any event, this contention is not entirely accurate. Certainly some (if not most) of the time associated with the prosecution of the claims and defenses involving the city over the time period of this litigation could have been identified if counsel had chosen to make such delineations in their time records. "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." Hensley v. Eckerhart, supra, 461 U.S. 437. "Plaintiff's counsel, of course, is not required to record in great detail how each minute of his time was expended. But at least counsel should identify the general subject matter of his time expenditures." (Citation omitted.) Id., 437 n. 12.
The time records submitted by the plaintiff's counsel fail to fully inform the court how to identify the time associated with its claims against the city because too many entries either lack sufficient specificity or do not at all describe the subject matter of the work performed. Consequently, in addition to the plaintiff's submissions, the court must base its determination on the court's review and familiarity with the file and the trial proceedings. The court also agrees with the defendants that some of the time reflected in the plaintiff's time records is related to work performed on cases other than this one, but based on the court's review, this time appears to be minimal. Based on the court's review and weighing of all of these considerations, the court finds it reasonable to reduce the plaintiff's claim of 5,044 hours for legal services by 40% as follows: 25% for time associated with the claims against the city; 10% for duplication of effort; and 5% for time insufficiently documented or related to other matters. Reducing the 5,044 hours by 40% produces a result of 3,026 hours, and multiplying this amount by the hourly rate of $325 provides a lodestar amount of $983,450.
The next issue is the overall reasonableness of this $983,450 lodestar amount in light of all the claims asserted, the relief sought, and the actual results achieved by the plaintiff. This evaluation involves a further consideration of the panoply of the Johnson criteria to determine whether the lodestar amount should be increased or decreased. This consideration indicates that some of these factors, including the following, conflict and compete.
The plaintiff emphasizes the egregiousness of the Lenocis' conduct and the Lenocis emphasize the minimal damages awarded by the jury. Addressing the defendants' position first, the court notes that in its complaint, the plaintiff sought $100 million in lost profits against the Lenoci defendants. The court disallowed this claim for lost profits from the jury's consideration because the claim was too speculative, contingent and attenuated. In the evidence presented to the jury, the plaintiff sought $2.3 million dollars against the Lenoci defendants. The jury awarded $20,000. Unquestionably, the plaintiff "was aiming high and fell far short." (Citation omitted.) Simms v. Chaisson, 277 Conn. 319, 333, 890 A.2d 548 (2006). The obvious issue of concern is whether attorney fees and litigation costs are being driven high less on the actual merits of the case and more on the plaintiff's unrealistic view of the complaint's merits. Certainly, a plaintiff may decide to incur exuberant litigation expenses by pursuing incidental claims, but the question for the court is whether requiring someone else to pay them is reasonable. The plaintiff's $1.5 million claim for attorney fees appears drastically disproportionate to a $20,000 recovery. Indeed, even a $983,450 attorney fee award appears to contrast seriously with the damages awarded by the jury. In short, in evaluating the overall reasonableness of the plaintiff's attorney fee claim, relevant considerations include the numerous, failed claims asserted by the plaintiff against multiple parties, as well as the minimal recovery achieved in comparison to the amounts sought.
On the other hand, although the size of the monetary award may be an important consideration in evaluating the reasonableness of the work performed, this factor is not determinative because CUTPA provides that an award of attorney fees is not to be based "on the amount of the recovery." General Statutes § 42-110g (d). Attorney fees and costs may be recovered under CUTPA when nominal damages are awarded or even when no damages are awarded. Service Road Corp. v. Quinn, supra, 241 Conn. 644; Thames River Recycling, Inc. v. Gallo, supra, 50 Conn. App. 794-96; Fabri v. United Technologies International, Inc., supra, 193 F. Sup. 2d 480.
Furthermore, under CUTPA, attorney fees are not allowed to a prevailing "party," but only to a prevailing "plaintiff." General Statutes § 42-110g (d). As stated previously, this provision evidences the policy of CUTPA to encourage litigants to act as private attorneys general and to bring actions to foster the statute's proscription against unfair or deceptive trade practices. Thus, the court agrees with the plaintiff that its efforts, as represented by its litigation expenses, are consistent with the unique policy of CUTPA to enable private attorneys general because the plaintiff's efforts succeeded in demonstrating that it was harmed by the Lenoci defendants' unfair and deceptive conduct. This conduct, involving municipal corruption, was not only egregious, but was criminal in nature, adversely implicating the contract and procurement practices of the city of Bridgeport.
Thus, in considering an award of attorney fees, even in a case involving minimal, actual damages, the court must be cognizant of this statutory goal to encourage attorneys to accept and litigate CUTPA cases. In this particular case, the conspiratorial and clandestine nature of the wrongful conduct itself would make discovery of the facts necessary to prove a claim arduous and time intensive, which in turn would prompt an attorney to hesitate before accepting the case. The court should also be cautious about "hindsight" analysis — i.e., the court is evaluating the overall success of the litigation from the perspective of the jury's actual verdict, which is a much different consideration than the one facing an attorney who is initially evaluating the merits of a case and determining whether the case should be accepted and how the case should be prosecuted. Stated differently, at the beginning of a case or even during its prosecution, the plaintiff's counsel may not be able to anticipate the extent to which the ultimate result will yield success.
Although the court is required only to consider, and not necessarily explicitly address, all of the Johnson factors, the court notes the following for thoroughness. See generally, Riggio v. Orkin Exterminating Co., supra, 58 Conn. App. 309. The court has considered the fact that the plaintiff has a contingency fee agreement with its counsel. On the basis of the facts presented here and the other factors pertinent to this decision, the court does not view the amount of fees indicated by this agreement (30% of the recovery) as a reasonable fee under the provisions of CUTPA. Id. The court has not placed any significant weight on the nature or length of the professional relationship between the plaintiff and counsel, or on any time limitations imposed upon counsel, because the court received no evidence on these issues beyond information observable by the court from the record. Lastly, the court has reviewed numerous other cases awarding attorney fees under CUPTA, but places little weight on this consideration because of the fact-specific nature of these determinations.
In exercising its discretion to award attorney fees and costs, the court's ultimate task is to proceed "in conformity with the spirit of the law and in a manner to serve and not to impede or defeat the ends of substantial justice." (Citation omitted.) Thames River Recycling, Inc. v. Gallo, supra, 50 Conn. App. 800. With this task in mind, and after careful consideration of the totality of factors bearing on this determination, the court reduces the lodestar amount and awards attorney fees in the amount of $650,000.
This award is approximately 42% of the total $1,561,926 attorney fee sought by the plaintiff. The plaintiff also has made a claim to recover costs under CUTPA in the amount of $370,092. The costs recoverable under CUTPA are not controlled or limited by statutory, taxable costs. See, e.g., Bristol Technology, Inc. v. Microsoft Corp., 127 F. Supp.2d 46, 82 (D. Conn. 2000). Essentially for the same reasons discussed above, the plaintiff's claim for costs will be reduced by the same percentage used for the reduction of the plaintiff's claim for attorney fees, and therefore, the court allows costs under CUTPA in the amount of $155,439 (plus taxable cost which will be addressed in a separate memorandum).
B PUNITIVE DAMAGES
General Statutes § 42-110g (a) provides in relevant part that "[t]he court may, in its discretion, award punitive damages. . . ." As a general rule, the aims of punitive damages are punishment, deterrence and profit disgorgement. Under CUTPA, the award and the amount of punitive damages are discretionary with the court. Gargano v. Heyman, 203 Conn. 616,622, 525 A.2d 1343 (1987). Although the law is not well developed as to how the court's discretion should be guided in determining punitive damages under CUTPA, a basic criterion for such an award is evidence revealing "a reckless indifference to the rights of others or an intentional and wanton violation of those rights." Id. "In fact, the flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injury, evil motive and violence." Id. "Recklessness" has been described as "more than negligence, more than gross negligence." Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988). "Wanton misconduct is reckless misconduct. . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. . . . [W]ilful, wanton or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care. . . ." (Citations omitted; internal quotation marks omitted.) Id. 532-33. The plaintiff must prove its punitive damages claim by a preponderance of the evidence. Whitaker v. Taylor, 99 Conn. App. 719, 735, 916 A.2d 834 (2007).
The plaintiffs argue that the Lenoci defendants' conduct was intentional, reckless and egregious and warrants a punitive damage award of $ 5 million against each of them or a total award of $10 million. The plaintiff explains that this punitive damages claim is based on or calculated by a ratio of 500 times the amount of the actual damages award of $20,000. The Lenoci defendants contend that their conduct does not warrant the imposition of punitive damages, but if the court disagrees, then the award should not exceed the amount of the compensatory damages, or $20,000.
The Lenoci defendants argue that no punitive damages should be awarded because their actions do not rise to the level of wilful, wanton or reckless conduct. These defendants insist that they had did nothing whatsoever concerning the project during the first year of the plaintiff's contract with the city. The defendants further argue that even after this first year, their conduct did not materially affect the relationship between the plaintiff and Ganim. According to the defendants, Ganim continued to support the plaintiff's exclusive right to develop the property until it became apparent that the plaintiff could not retain or keep a financial partner and was without the resources to complete the project.
The defendants' position that the evidence against them fails to support a punitive award does not square with the jury's verdict. On the basis of the complaint's allegations that were submitted to the jury, the jury found that the Lenoci defendants violated CUTPA by soliciting, accepting, paying or promising to pay bribes in order to tamper with, interfere or deny the plaintiffs' development of Steel Point. The defendants' deliberate interference with the plaintiff's legitimate contract rights through conduct involving bribes to a public official is reprehensible behavior and evidences a reckless indifference to the rights of another sufficient to support an award of punitive damages. The issue, therefore, now turns to a determination of the amount of that award.
As previously stated, CUTPA does not expressly delineate the criteria to be utilized in measuring the amount of a punitive damages award, and the issue has not definitively been addressed by our appellate courts. See Perkins v. Colonial Cemeteries, Inc., 53 Conn. App. 646, 649, 734 A.2d 1010 (1999) ("[t]he CUTPA statutes do not provide a method for determining punitive damages"). Certainly, the nature of the defendants' conduct, the actual harm to the plaintiff, and the harm the defendants intended to inflict are all relevant considerations. As compared to punitive damages under Connecticut common law, punitive damages under CUTPA are focused on deterrence, rather than mere compensation. Lenz v. CNA Assurance Co., 42 Conn. Sup. 514, 630 A.2d 1082 (1993). Consequently, the defendants' financial condition is a relevant consideration. "Once deterrence rather than compensation becomes the focus of CUTPA punitive damages . . . then the financial standing of the party against whom damages are sought becomes relevant and material." Id., 516.
The Restatement (Second) of Torts § 908 (2) (1979) states that "[i]n assessing punitive damages, the trier of fact can properly consider the character of the defendant's act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant." See generally Connecticut Practice Series, Connecticut Unfair Trade Practices, Vol. 12, § 6.11.
Moreover, the Appellate Court has observed that awarding an amount equal to the plaintiff's actual damages "is a recognized method for determining punitive damages under CUTPA. . . . It is not an abuse of discretion to award punitive damages based on a multiple of actual damages." (Citations omitted.) Staehl v. Michael's Garage, Inc., 35 Conn. App. 455,463, 646 A.2d 888 (1994). "[C]ourts generally award punitive damages in amounts equal to actual damages or multiples of the actual damages." Perkins v. Colonial Cemeteries, Inc., supra, 53 Conn. App. 649. Indeed, it appears that in terms of consistency or frequency, punitive damages awards under CUTPA are generally equal to or twice the amount of the compensatory award. See generally Connecticut Practice Series, Connecticut Unfair Trade Practices, Vol. 12, § 6.11, pp. 490-91 nn. 92 and 93.
The plaintiff also addresses the relevance of the United States Supreme Court's decision in Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008), to this court's consideration of punitive damages under CUTPA. In Exxon Shipping, the Supreme Court considered the reasonableness of $2.5 billion awarded as punitive damages against the defendants for an oil spill from the supertanker Exxon Valdez when it became grounded on Bligh Reef off the Alaskan coast. The Supreme Court determined that a 1:1 ratio is a fair upper limit for punitive damages in federal maritime cases, meaning that the punitive damages award should be approximately equal to the compensatory award. The court noted that this 1:1 ratio was particularly apt in a case involving "reckless," but not "intentional or malicious" conduct. The compensatory damages awarded by the District Court were $507.5 million, and therefore, the Supreme Court ordered that the punitive damages be reduced to this amount in order to accomplish a punitive-to-compensatory ratio of 1:1. Id., 2631-34.
The plaintiff emphasizes that Exxon Shipping does not control this court's determination of punitive damages under CUTPA. The plaintiff explains that Exonn Shipping involves reckless conduct dissimilar to the conduct here, and more important, the case concerns a punitive remedy under federal maritime law that is altogether distinct from the punitive remedy authorized under CUTPA. Although the plaintiff is unquestionably correct that Exxon Shipping is not controlling, the reasoning of the Supreme Court's decision is very persuasive in identifying certain factors relevant to determining the amount of a punitive damages award, even in a CUTPA case.
It is noted that although the Supreme Court's decision in Exxon Shipping concerned federal maritime law, the Court reached its holding by analyzing and relying on punitive awards in state court civil trials. See Exxon Shipping Co. v. Baker, supra, 128 S. Ct. 2631-32. The Court explained that studies considering the "median ratio of punitive to compensatory verdicts, reflecting what juries and judges have considered reasonable across may hundreds of punitive awards [covering] . . . cases of the most as well as the least blameworthy conduct . . . put the median ratio for the entire gamut of circumstances at less than 1:1, meaning that the compensatory award exceeds the punitive award in most cases." Id.
In holding that "quantified limits" were necessary for punitive damages under federal maritime law, the Supreme Court in Exonn Shipping noted its concern about the tension between the function of punitive damages and the unpredictability of high punitive damages awards. The Court explained that this tension was caused by the unfairness implicated by "eccentrically high punitive verdict[s]." Id., 2627. In evaluating this concern and in reaching the decision that a maximum multiplier should be utilized to address unpredictably high punitive awards, the court emphasized two factors: 1) the need for some reasonable predictability in the severity of punitive awards; and 2) the need that punitive awards will treat defendants "with a fair probability of suffering in like degree for like damage." Id.
More fully, the Supreme Court stated that the unpredictability of high punitive awards "is in tension with the function of the awards as punitive, just because of the implication of unfairness that an eccentrically high punitive verdict carries in a system whose commonly held notion of law rests on a sense of fairness in dealing with one another. . . . The common sense of justice would surely bar penalties that reasonable people would think excessive for the harm caused in the circumstances." Exxon Shipping Co. v. Baker, supra, 128 S. Ct. 2627.
In evaluating the amount of the punitive award in this CUTPA case, the court does not entertain the adoption of any maximum ratio limiting the size of the recovery. The General Assembly could have legislatively imposed a cap on CUTPA punitive awards, but chose not to do so. Nevertheless, in exercising the court's authorized discretion under the statute to award punitive damages, the considerations noted in Exxon Shipping have relevance in determining the amount of CUTPA punitive damages. More specifically, the court should be concerned about "fairness as consistency" and the real as well as potential "unpredictability of punitive awards." Id., 2625. As cogently expressed by the Supreme Court, "[a] penalty should be reasonably predictable in its severity, so that even Justice Holmes' `bad man' can look ahead with some ability to know what the stakes are in choosing one course of action or another. . . . And when the bad man's counterparts turn up from time to time, the penalty scheme they face ought to threaten them with a fair probability of suffering in like degree when they wreak like damage . . . The common sense of justice would surely bar penalties that reasonable people would think excessive for the harm caused in the circumstances." (Citations omitted.) Id., 2610.
Thus, the court may properly consider the need for at least a modicum of predictability and consistency in the amount of CUTPA punitive awards. In light of these considerations, and in order to provide some degree of rational consistency in punitive damages awards and to avoid high awards that appear randomly erratic or eccentric, this court concludes that in determining the amount of punitive damages, the court may consider that a frequent or consistent range of punitive damages awarded under CUTPA is a ratio that is equal to or twice the amount of the compensatory damages, and that particularly when it is claimed that the award should exceed this range, the award ordinarily should be premised on aggravating factors that are identifiable and articulable. Stated differently, particularly when "high" punitive damages are being claimed, a consideration of the normative range of punitive awards and an identification of articulable, aggravating factors supporting an award outside this range are wholly consistent with a reasonable exercise of the court's discretion to award punitive damages that are rationale, predictable and consistent.
The court agrees with the plaintiffs that the following identifiable and articulable facts militate in favor of a high, rather than a low, award of punitive damages in this case: the illegal and deliberate nature of the defendants' conduct; the general policy inimical to the bribing of public officials; the financial wealth of the defendants; and the potential breadth of the consequences of an effort or plan to interfere with a property development agreement as expansive and monumental as the plaintiff's Steel Point project.
The evidence indicates that the approximate net worth of Alfred Lenoci, Sr. is $32 million and the approximate net worth of Alfred Lenoci, Jr. is $48 million.
The court also agrees with the Lenoci defendants that the court should look at the actual loss suffered by the plaintiff and how the amount of this loss as found by the jury militates against a high punitive damage award. As previously discussed, although the plaintiff's project contemplated a muti-million dollar construction and the plaintiff sought more than $2 million in compensatory damages, the jury awarded only $10,000 against each of the Lenoci defendants in actual damages for the CUTPA violation. Indeed, among the more vexing, competing considerations presented to the court in determining the amount of the punitive award in this case is, on one hand, the issue of deterrence, particularly in light of the defendants' financial net worth, and on the other hand, the issue of the overall reasonableness and rationality of a high punitive award in light of the amount of the plaintiff's actual recovery and the considerations highlighted by Exonn Shipping. In this regard, the court notes that "[b]ecause neither compensation nor enrichment is a valid purpose of punitive damages, an award should not be so large as to constitute a windfall to the individual litigant." Vasbinder v. Scott, 976 F.2d 118, 121 (2nd Cir. 1992).
Additionally, the court considers the defendants' emphasis on the fact that they did not derive any income or profits from the wrongful conduct for which they have been found liable. Furthermore, the defendants note that their conduct did not involve either physical violence to anyone or a threat to anyone's physical health or safety, but they must concede that substantial punitive damages have been awarded solely for economic harm. See, e.g., TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443 (1993); Bristol Technology v. Microsoft Corp., 114 F. Sup.2d 59 (D. Conn. 2000). Another general consideration in the court's overall evaluation of the punitive damages award is that the court has awarded attorney fees and costs in addition to the jury' award of actual damages.
Furthermore, in addition to the statutory factors bearing on the court's discretion, a broader, threshold consideration is that high punitive awards may implicate constitutional concerns. The court should be mindful "[t]hat the United States Constitution imposes a substantive limit on the size of punitive damages awards. This is because punitive damages pose an acute danger of arbitrary deprivation of property. . . . Still, in our federal system, States necessarily have considerable flexibility in determining the level of punitive damages that they will allow in different classes of cases and in any particular case. . . . Only when an award of punitive damages can fairly be categorized as grossly excessive in relation to the State's legitimate interests in punishment and deterrence does it enter the zone of arbitrariness that violates due process. . . ." (Citations omitted; internal quotation marks omitted.) Bristol Technology v. Microsoft Corp., 114 F. Sup.2d 59, 86 (D. Conn. 2000).
In evaluating whether punitive damages awards satisfy due process requirements, the Supreme Court has "[i]nstructed courts reviewing punitive damages to consider three guideposts: 1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. . . ." (Citation omitted.) State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 408,418, 123 S. Ct. 1513 (2003). The Supreme Court's further guidance concerning the applicability of the second factor — the disparity between the actual or potential harm suffered by the plaintiff and the contemplated punitive award — is particularly instructive in regard to the positions of the parties in the present case:
[W]e have been reluctant to identify concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff and the punitive damages award. . . . We decline again to impose a bright-line ratio which a punitive damages award cannot exceed. Our jurisprudence and the principles it has now established demonstrate, however, that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process. In [Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 23-24, 111 S. Ct. 1032 (1991)], in upholding a punitive damages award, we concluded that an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety. . . . We cited that 4-to-l ratio again in [BMW of Norht America, Inc., v. Gore, 517 U.S. 559, 581,116 S. Ct. 1589 (1996)]. The Court further referenced a long legislative history, dating back over 700 years and going forward to today, providing for sanctions of double, treble, or quadruple damages to deter and punish. . . . While these ratios are not binding, they are instructive. They demonstrate what should be obvious: Single-digit multipliers are more likely to comport with due process, while still achieving the State's goals of deterrence and retribution, than awards with ratios in range of 500 to 1, . . . or, in this case, of 145 to 1.
Nonetheless, because there are no rigid benchmarks that a punitive damages award may not surpass, ratios greater than those we have previously upheld may comport with due process where a particularly egregious act has resulted in only a small amount of economic damages. . . . The converse is also true, however. When compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee. The precise award in any case, of course, must be based upon the facts and circumstances of the defendant's conduct and the harm to the plaintiff.
(Citations omitted; internal quotation marks omitted.) State Farm Mut. Automobile Ins. Co. v. Campbell, supra 538 U.S. 424-25.
Although the constitutional considerations are addressed at length by the parties in regard to the plaintiff's $10 million punitive claim, the court finds it unnecessary to consider in any detail whether the punitive damages awarded by the court comports with due process requirements because the court is satisfied that its award meets this outside threshold. See generally State Farm Mut. Automobile Ins. Co. v. Campbell, supra, 538 U.S. 408; BMW of North America, Inc., v. Gore, supra, 517 U.S. 559.
After considering and balancing these issues as a whole, the court finds that a fair punitive damages award under CUTPA is six times the actual damages, or a punitive damages award of $60,000 against Alfred Lenoci, Sr., and $60,000 against Alfred Lenoci, Jr.
II COMMON LAW PUNITIVE DAMAGES
The plaintiff seeks common law punitive damages against the defendant Ganim on the basis of the jury's finding under count VIII of the complaint that Ganim made fraudulent misrepresentations to the plaintiff about the Steel Point project. Punitive damages may be awarded upon a showing of fraud. Plikus v. Plikus, CT Page 22098 26 Conn. App. 174, 180, 599 A.2d 392 (1991). Common law punitive damages are recoverable "when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights." Vandersluis v. Weil, 176 Conn. 353,358,407 A.2d 982 (1978). The jury's finding of fraudulent misrepresentation was premised on Ganim's false representations concerning a municipal construction project. On the basis of this finding, the court is satisfied that the plaintiff has proven a reckless indifference to the plaintiff's contractual and business interests to warrant an award of punitive damages against Ganim.
Under Connecticut law, punitive damages primarily serve compensatory purposes and are limited to the plaintiff's litigation expenses less taxable costs. Berry v. Loiseau, 223 Conn. 786, 825-827 (1992); Alaimo v. Royer, 188 Conn. 36, 42-43 (1982). The award of punitive damages based on litigation costs has been recognized by our Supreme Court as also being a sufficient means to punish and deter wrongful conduct. Berry v. Loiseau, supra, 223 Conn. 827. An award of punitive damages rests in the sound discretion of the trier of the facts. Kenny v. Civil Service Commission, 197 Conn. 270,277 (1985); see generally, Freeman v. Alamo Management Co., 221 Conn. 674, 679 (1992) ("As courts have uniformly held, no plaintiff has a right to punitive damages: the purpose of punitive damages is to vindicate the public interest not that of a particular plaintiff").
Lyons v. Nichols, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 94 0312019 (May 13, 1999; Stevens, J.), aff' d, 63 Conn. App. 761, 778 A.2d 246 (2001).
The plaintiff has a fee agreement with its counsel providing for an attorney fee based on 30% of the first $6 million recovered. Based on this agreement and the jury's compensatory award of $182,000 against Ganim, the plaintiff seeks $54,600 in attorney fees as part of a punitive damages award. The plaintiff also seeks $370,092 in costs, making its total punitive damages claim $424,692 (less taxable costs).
Absent a showing of manifest unreasonableness, in determining punitive damages the court should look to the plaintiff's fee agreement to evaluate the plaintiff's expenses for legal services. Cf. Schoonmaker v. Lawrence Brunoli, Inc., supra, 265 Conn. 210, 266-273 (discussing the use of contingency fee agreements in determining the amount of attorney's fees recoverable by contract or statute.) In calculating common law punitive damages, as compared to calculating attorney fees under CUTPA, the court may utilize the plaintiff's fee agreement and base the determination of litigation expenses on the amount of the recovery. The court agrees with the plaintiff that its fee agreement provides an appropriate measure for the amount of the attorney fees to be included as part of the common law punitive damages award against Ganim.
The court, however, does not find that the facts support the plaintiff's claim that all of its costs should be included as part of the punitive damages award. As compared to the amount of the plaintiff's attorney fee claim, the plaintiff's claim for $370,092 in costs more directly and fully reflects the costs incurred by the plaintiff for the entire litigation. As previously addressed, the plaintiff did not prevail on all of its claims against Ganim, and all of the plaintiff's claims cannot be described as being inextricably intertwined or connected. "In applying the Connecticut rule that punitive damages are limited to the prevailing party's litigation expenses, the court concludes that it would not be an appropriate exercise of the court's discretion to award the plaintiff all the attorney fees expended in his litigation against [the defendant] when the majority of these expenses were incurred on meritless claims." Lyons v. Nichols, supra. Applying this rule here, the plaintiff should not recover litigation expenses as part of the punitive damages award that were incurred for claims on which it lost, particularly when these claims are not related to claims on which it prevailed.
In evaluating this issue, the court finds applicable here much of its earlier discussion concerning the plaintiff's recovery of litigation expenses against the Lenoci defendants under CUTPA, and that analysis will not be repeated. As an example, the plaintiff also sought $100 million in lost profits and $2.3 million in expenses against Ganim. The plaintiff only recovered $182,000. As a further example, the plaintiff's claims against the defendant city of Bridgeport are not sufficiently intertwined with or connected to the claim of fraudulent misrepresentation against Ganim.
Thus, the court's consideration again turns to determining how much of the plaintiff's total litigation costs are sufficiently related to the prosecution of prevailing claims — in this instance, the plaintiff's fraudulent misrepresentation claim against Ganim. In making this determination, the court's ultimate task is to make an award within the necessarily uncertain limits of fair and reasonable compensation consistent with the court's exercise of its discretion to do substantial justice. Based on an evaluation of the totality of the relevant considerations bearing on this issue, the court concludes that the plaintiff should recover 42 % of its costs as part of the punitive damages award for reasons that parallel those supporting the court's award of costs under CUTPA. Thus, on the basis of the jury's finding under count VIII of the complaint, the court awards punitive damages against Ganim in the amount of $210,039, consisting of $54,600 in attorney's fees and $155,439 for costs.
CONCLUSION
Therefore, for all the foregoing reasons, under count VIII of the complaint alleging fraudulent misrepresentation, the court awards in favor of the plaintiff, Bridgeport Harbour Place I, LLC, and against the defendant Joseph Ganim, punitive damages of $210,039, less taxable costs. Under count IX of the complaint alleging violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a, the court awards in favor of the plaintiff, Bridgeport Harbour Place I, LLC, attorney fees of $650,000 and costs of $155,439 against the defendants Alfred Lenoci, Sr. and Alfred Lenoci, Jr.; and punitive damages of $60,000 against the defendant Alfred Lenoci, Sr. and punitive damages of $60,000 against the defendant Alfred Lenoci, Jr.
Dated this 31st day of October 2008.