Opinion
No. CV010182864S
January 23, 2007
Memorandum of Decision.
Both these cases are actions by an attorney, Harry Constas, to collect legal fees allegedly due from the defendant Gina Tucci individually and/or as the administratrix of the estate of her deceased husband Mario Tucci and the executrix of the estate of her deceased sister-in-law Mary Tucci.
Mario Tucci died in 1987. His sister Mary Tucci was originally appointed as his executrix and trustee by the Greenwich Probate Court. She was succeeded by the defendant Gina Tucci who was appointed as administratrix c.t.a.d.b.n. and trustee of her husband's estate following the resignation of Mary Tucci shortly before her death in 1996. The defendant also became the executor of the Estate of Mary Tucci in 1996 by order of the Greenwich Probate Court. The probate of both estates has been concluded and the defendant has distributed all estate assets in accordance with the probate court's approval of her final accounts in both estates. No party appealed to the Superior Court from the allowance of either final account.
These actions have been commenced by the plaintiff attorney pursuant to Conn. Gen. Stat. § 52-570a (Formerly § 52-202). The cases have been consolidated for purposes of trial. The court heard evidence at a bench trial on August 1 and August 2, 2006. Transcripts have been prepared and will be cited as (Tr. 8/_/06, p. _.) Post-trial memoranda have been filed by both parties and reviewed by the court.
§ 52-570a provides: (a) If any person has a legal claim against any executor, administrator, guardian or trustee, on account of moneys paid or services rendered for the estate administered by the executor, administrator, guardian or trustee, and which should justly be paid out of the estate, the claimant may bring a civil action against the executor, administrator, guardian or trustee, while in office, or against the successor of any of them, if such fiduciary has ceased to hold office; (b) if the claim is found to be a just one which ought to be equitably paid out of the estate, judgment may be rendered in favor of the claimant, to be paid wholly out of the estate held by the executor, administrator, guardian, or trustee; (c) if there is not sufficient estate to satisfy the claim or claims in the possession of the executor, administrator, guardian or trustee, this section shall not be construed to prevent any claimant from pursing his legal remedy against the executor, administrator, guardian or trustee, at his election, for the balance that may be due him, nor from electing to hold any such official liable to his personal responsibility for any debt contracted in the execution of the trust.
Since the estate assets in each case have been fully distributed pursuant to approved final accountings of the fiduciary, the plaintiff's claims against Gina Tucci in her fiduciary capacities as administratrix, trustee, and executor are obviously moot. The claims of individual personal liability of the defendant (Counts 4 and 5, Docket No. 0182864 ("the `64 case") and counts 1 and 2, Docket No. 0182865 ("the `65 case") are to be adjudicated. CT Page 1601
Collateral Estoppel Defenses
In each case the defendant has pled that the issue of plaintiff's entitlement to further legal fees has been precluded under the doctrine of collateral estoppel because of previous adjudications in the Greenwich Probate Court. In the `64 case (Mario Tucci estate) the defendant alleges ". . . that the Probate Court for the District of Greenwich previously denied in its entirety the plaintiff's claim for additional fees in the estate of Mario Tucci and accordingly the plaintiff's claim herein is bar [sic] by the doctrines of Res Judicata and Collateral Estoppel" (Answer, `64 case, first, second and fourth counts ¶ 6; third count ¶ 4). And in the' 65 case (Mary Tucci estate) the defendant alleges "the plaintiff's claims are barred by the equitable doctrines of collateral estoppel and res judicata, inasmuch as the plaintiff's claims have already been ruled upon by the Greenwich Probate Court." (Answer, `65 case, first and second counts, ¶ 6).In the Mary Tucci case (the `65 case) neither party presented any evidence of any ruling or decree of the Greenwich Probate Court concerning in any way the plaintiff's claim for or entitlement to legal fees for services rendered to the estate, and counsel for the defendant has specifically stated in her post-trial memorandum of law that "No. The attorneys fees paid . . . [in the Mary Tucci Estate] were never ruled on by the Greenwich Probate Court." Since the defendant has the burden of proof on this issue, the court rules in favor of the plaintiff on the "special defense" of collateral estoppel in the `65 case.
In the `64 case the defendant has presented as Exhibit I a certified copy of an affidavit of the plaintiff, Harry Constas dated February 1, 2001 as filed in the Greenwich Probate Court in connection with the hearing of that date to consider the final account submitted by the defendant as administratrix of the Estate of Mario Tucci, and as Exhibit J a certified copy of the "Affidavit of Closing of Estate" signed by the defendant as administratrix of the Estate of Mario Tucci on February 21, 2001 and a notation that the affidavit was "accepted and ordered to be recorded" by order of the probate judge (Judge David R. Tobin) on March 20, 2001. Exhibit J refers to and incorporates a copy of the administratrix' final account as previously approved by the probate court. In Schedule B of her account (Administrative Expenses Paid From Principal) the defendant listed items for real estate taxes and probate fees paid, $3,500 for "tax services", $26,387.72 for legal fees to the firm of Cummings Lockwood (who succeeded the plaintiff as attorney for the estate in 1999) and zero for Harry T. Costas, P.C. legal fees and disbursements. By footnote to the final entry the defendant stated: CT Page 1602
The Executrix has rejected and refused to pay a statement in the net amount of $35,625 in fees and disbursements ($41,625 less $6,000 paid on account) submitted by Harry T. Constas for legal services rendered to the estate. The Executrix believes that Atty. Constas' services did not benefit the estate, and therefore should not be paid.
Greenwich Probate Court Records, vol. 2674, p. 143.
The plaintiff's affidavit (Exhibit 1) submitted to the probate court for purposes of the hearing on the final account, purports to support his request for allowance of the fees which the defendant had rejected and refused to pay. The affidavit states, in part:
5. The fees charged were based on records maintained, consisting of contemporaneous time records of the persons performing the services, with description of the services.
6. The fees charged were at the agreed upon rate of $200 per hour.
7. The services rendered were not only the usual estate proceedings, but also involved lengthy and bitterly contested litigation in which the Administratrix resisted payment of legal and accounting fees here, and in Italy, where the attorney who attended to the tax problem concerning the Villa in Florence, instituted a law suit to collect a fee.
8. The Administratrix of the Estate did not not question any of my statements when received by her, nor while the services were required, nor at any time during the years when they were being performed, though she was receiving periodic bills.
9. It is my belief that the charges for the services performed are reasonable. Greenwich Probate Court Records, vol. 2674, p. 136.
The defendant argues, based on the foregoing evidence, that there was a hearing at the Greenwich Probate Court at which the opposing positions of the parties with respect to the plaintiff's contested claim for additional attorneys fees were put forward to the court, and that, by approving the final account which allowed for zero additional fees to Atty. Constas, the probate court judicially determined the issue of defendant's responsibility to pay additional fees to the plaintiff in defendant's favor, and the plaintiff is therefore now collaterally estopped from relitigating that issue in this court. The court does not agree with that position.
Collateral estoppel has been described as a "first cousin" of the doctrine of res judicata. Chada v. Charlotte Hungerford Hospital, 97 Conn.App 527, 534 (2006). Both are grounded in the policy of promoting judicial economy by preventing relitigation of issues previously resolved. Res judicata is claims preclusion, which prevents a litigant from reasserting a claim that has already been decided on the merits. Collateral Estoppel is issue preclusion which prevents a party from relitigating an issue that has been determined in a prior suit. Id. Since the February 1, 2001 hearing in the Greenwich Probate Court in the Mario Tucci estate was not specifically limited to a claim for attorneys fees but rather the issue of the propriety of charging those fees against estate assets was one issue as to the allowance or disallowance of the fiduciary's final account, the defendant's claim of defense is a claim of collateral estoppel.
Our case law is clear that Probate Court decrees can be final judgments for purposes of the doctrine of collateral estoppel, and that the issue of whether or not the doctrine is applicable to the facts of the present case is an issue of law for the court. Gaynor v. Payne, 261 Conn. 585, 595-96 (2002). The requirements for the application of collateral estoppel to probate decrees have been stated:
(1) The person or property affected by the decree must have been subject to the territorial jurisdiction of the estate;
(2) A reasonable method of notification must have been employed and a reasonable opportunity to be heard afforded to persons affected by the decree; (3) The court rendering the decree must have jurisdiction, in the sense of competency, to entertain the matter and render the decree;
(4) The decree must have been final and not an interlocutory order or informal expression by the court; . . .
(5) The procedure necessary to bring the matter before the court and render a valid decree must have been followed . . .
(6) The issue must have been properly presented for adjudication; and
(7) The issue must have been expressly or impliedly adjudicated.
Ralph H. Folsom, Probate Litigation in Connecticut 2d § 3:5 and cases therein cited.
In this case there was testimony that the plaintiff, Harry Constas, was present at the probate court hearing on February 1, 2001 and submitted his affidavit (Exhibit 1) to the court. It is not necessary to decide whether or not that procedure afforded him "reasonable opportunity to be heard" because the probate court did not have jurisdiction over the individual liability of the defendant to the plaintiff for payment of fees for legal services rendered to the estate (which, as previously noted, is the only liability at issue in this case since the estate assets have all been distributed), and because the probate decree was not a final adjudication of the personal individual liability of Gina Tucci to pay those fees. The purpose of the probate hearing was to approve or disapprove the final account of the fiduciary and in particular as to expenses to determine if claimed expenses are properly charged to estate assets. The administratrix, Gina Tucci, listed the legal fees claimed by Atty. Constas but did not seek to charge any portion of those fees against estate assets. The probate court approved that accounting, but that did not adjudicate Atty. Constas's claim that Mrs. Tucci had an individual contract liability to pay those fees. Although he was present at the hearing as a former attorney for the administratrix he was not a party to those proceedings, and they are not binding on him so as to preclude his present claims. Conn. Gen. Stat. § 52-570a(c) specifically gives a claimant in the plaintiff's position the right to sue the fiduciary in Superior Court for his fees "[I]f there is not sufficient estate to satisfy the claim . . ." As explained by Professor Folsom:
In his post-trial memorandum the plaintiff argues that "[P]laintiff was not offered the opportunity to justify the bills." Plaintiff's Post-Trial Memorandum, p. 6.
Whenever an executor or administrator enters into a contract binding the estate, he or she incurs a personal liability since the estate is not a legal entity and cannot be the obligor. The administrator or executor is personally liable for breach of express contracts . . . for all debts incurred in the continuation by the fiduciary of the business of the deceased, . . . and for expenses of administration generally.
. . .
Moreover, the statute [§ 52-202 now § 52-570a] does not change the nature of the obligation but merely affords the creditor a remedy by which, without injustice, to the estate, the obligation owed may be discharged immediately from the fund which in any event would bear the ultimate burden. It is designed to allow recovery of the expenses authorized by fiduciaries not the expenses of beneficiaries incurred while benefiting the estate. Attorneys must use it to challenge the disallowance of claims for fees in a fiduciary's final accounting after Probate Court approval of the account. (Emphasis supplied.) Folsom, supra, § 4.10.
Defendant argues that the probate decree should be binding on the plaintiff because he did not file a statutory appeal to the Superior Court. But it is established that a post-mortem creditor such as the plaintiff has no standing to appeal because the fiduciary seeking indemnity from estate assets — not the creditor — is the aggrieved party, and the creditor is restricted to his civil action remedies under § 52-570a. DiFrancesca v. Rousseau, 36 Conn.Sup. 33 (1979), citing Burke v. Terry, 28 Conn. 413. Consequently, the DiFrancesca court dismissed the probate appeal of an attorney whose fees were largely disallowed by the probate court in its decree approving the final account, relegating him to his remedy under § 52-570a.
The court therefore also rules for the plaintiff on the collateral estoppel defense in the `64 case. Having rejected the collateral estoppel defenses the court shall consider the merits of each case.
Discussion A. Estate of Mario Tucci ('64 Case)
Mario Tucci died in 1987. The plaintiff was not the first attorney for the estate. Others preceded him. He became involved in June 1996 when he was retained by the defendant Gina Tucci to take over as counsel for the estate, representing her in her capacity as administratrix of the estate. Although no letter or agreement of retention was offered in evidence, the plaintiff testified — and the defendant did not dispute — that there was a Mario Tucci Estate retention letter identical in form and content to the retention letter for the Estate of Mary Tucci (Exhibit 6) which specifies that, "The charges will be based upon the time spent on the estate matters at the hourly rate $200 per hour," and that, "Statements will be rendered periodically and will include any disbursements and expenses incurred in representing the Estate." The plaintiff testified that two identical retention letter agreements — one for each estate — were prepared and sent out on June 30, 1997, to confirm prior verbal understandings, and that the letters were countersigned and returned by the defendant. Despite the absence of an exhibit to document the Mario Tucci Estate retention letter the court finds that it was signed and sent out to the defendant and then signed by the defendant and returned to the plaintiff and that the terms of retention were the same as set forth for the Mary Tucci Estate in Exhibit 6, and that the purpose of the letters was to confirm verbal agreements reached at the commencement of each representation. As the plaintiff testified: "I filed an appearance and I should add that I received a retainer agreement in both estates and it provided — we discussed the fee and my fee was based on time." (Tr. 8/1/06, p. 49). It is also found and noted that the defendant made partial payments of legal fees on both estates prior to June 30, 1997 based on the $200 hourly rate, confirming the express verbal agreement, later documented by Exhibit 6 and the identical retention agreement for the Mario Tucci estate.
At an earlier stage of this litigation, in her Defendants' Memoranda of Law in Support of Motion to Dismiss, dated May 9, 2001 at page 1, defendant's counsel admitted that the defendant Gina Tucci, Administratrix, had signed a retention letter for the Mario Tucci Estate, as prepared by the plaintiff on June 30, 1997.
The plaintiff admits that his fees for the first six months of representing the Mario Tucci Estate (June through late December 1996) have been paid, and that he is not suing for those fees. He testified, however, that his subsequent bills for legal fees and disbursements in the total cumulative amount of $41,625.05 were rendered to the defendant but have not been paid. Those billing statements, three in number, are in evidence as Exhibit 2, and they cover time periods as follows:
Date of Bill Time Period Covered Hours Fees Disbursements $ 7,050 $1,025.05
Three of those hours were performed by an associate and were billed at $100 per hour.
Although the defendant denies receiving these billing statements, the court finds that they were sent to the defendant by the plaintiff. The legal services billed to the defendant can be sorted into two general categories: (1) probate work (having the defendant appointed as administratrix d.b.n.c.t.a. of the estate, working on accountings to the probate court, taxes, trust accounting, trust funding, etc); and (2) litigation work consisting of initiating, prosecuting, and attempting to settle lawsuits against the law firm and the accountant who had previously represented the estate to recoup legal and accounting fees which the probate court had found to be excessive and had ordered the previous executor (Mary Tucci) to recoupe. The defendant claims that the fees sought by the plaintiff are not reasonable, and that in any event she is entitled to credit for payment made to the plaintiff by or on behalf of the estate of Mario Tucci. She testified as to checks tendered to the plaintiff at his request on certain occasions in the absence of any billing statement. The court will first discuss the claimed payment credit.
By decree of October 17, 1995 (Exhibit 1) the Greenwich Probate Court had ordered the prior executrix to recoup $13,382 of the $73,382 in legal fees she had paid to the firm of Bleakley Schmidt, and $46,188 of the $91,188 she had paid to D'Arcangelo Co, CPAs.
A practice confirmed by the plaintiff: "We don't bill every month. But we bill every so often, and we talk about it, too. Gina was a friend of mine. I would ask her — I asked her quite a few times for a check." (Tr. 8/1/06 p. 141.)
There was evidence of several checks in varying amounts paid to the plaintiff, but the $5,000 check dated January 15, 1998 is the only one claimed by the defendant in her post-trial memorandum to be applicable to the Mario Tucci Estate. Only the $5,000 claim of credit will be considered by the court in the `64 case.
The plaintiff did submit a partial copy of a letter or bill of October 6, 1998 stating that interest would be due on delinquent accounts as an attachment to his post-trial memorandum, but that was after the trial had concluded. The letter is not evidence and cannot be considered by the court.
$5,000 Check dated January 15, 1998 (Exhibit E)
This is a check drawn on the checking account of "The Estate of Mario Tucci Gina Tucci, Admin." in favor of Harry Constas in the amount of $5,000. The defendant testified that it was a payment on account of legal services in the Mario Tucci estate. (Tr. 8/2/06 p. 55.) The defendant admitted receipt and negotiation of the check but denied that it was payment applicable to the Mario Tucci Estate . . . His testimony was:
And then there is one [check] for $5,000 in 1998. I would say that I don't know this. I didn't send a bill for $5,000 that I know of, and I didn't send a bill for $4,350, but you know I am glad that it was paid and someone has to be credited but I don't know for what. (Tr. 8/1/06 p. 123.)
The court finds that the defendant Gina Tucci is entitled to the credit and it applies to the account for the Estate of Mario Tucci. The defendant is therefore entitled to a $5,000 credit against the claims in this `64 case.
Reasonableness
The plaintiff is claiming breach of an express written contract for fees determined by a stipulated formula ($200 per hour), which written agreement confirmed a prior verbal agreement made at the outset of the representation. Under these circumstances there is no requirement that the agreed fee, to be enforceable, must be limited to what is found to be reasonable. DiFrancesco v. Goldman, 127 Conn. 387 (1940). As the court said:
The effect of the instructions given by the trial court was to inform the jury that even if they found there was a contract between the plaintiff [an attorney] and the defendant [his client] as to the amount of the service, such contract was not effective unless the jury first found that it was reasonable. In effect, this instruction denied the right of an attorney to contract with his client as to the value of his services . . . and permitted the attorney to recover only such sum as the jury might find to be reasonable. This was an incorrect statement of the law.
Id., 127 Conn. at 393, 394.
See also St. Onge, Stewart, Johnson Reens, LLC v. Media Group, Inc., 84 Conn.App 88 (2004), where the attorneys fee claim was based on an alleged express or implied agreement by the client to pay a reasonable fee for the attorneys' services:
In the plaintiff's view, the evidence presented by its witnesses was a sufficient basis for the jury verdict because this case involved nothing more than a collection of fees that the defendant had agreed to pay. This argument might have some force if the jury had found the existence of an express contract between the parties. It is not persuasive for a jury verdict based on implied contract. 84 Conn.App. at 98.
The holding of DeFrancesco v. Goldman which seems to be reflected in St. Onge is consistent with the law in other states:
With respect to a contract for compensation, entered into in the establishment of the relation of attorney and client, the attorney, as a condition of enforcing it, is not forced to show that it is just, fair, and reasonable.
7 Am.Jur.2d, Attorneys at Law § 328.
Despite the lack of any requirement that plaintiff's fee be based on a finding of reasonableness, the defendant makes a cursory argument of unreasonableness, citing the standards relied upon in Haywood v. Plant, 98 Conn. 374 (1923) which she characterizes in her post-trial memorandum as being generally articulated in the Rules of Professional Conduct, Rule 1.5(a). But the defendant's argument is brief and totally devoid of analysis, without specifically citing a single factor of Rule 1.5(a) or Haywood v. Plant, claimed to be indicative of an unreasonable fee charged by the plaintiff. The court notes that the first-listed factor of reasonableness under rule 1.5(a) is "The time and labor required . . ." which has been held to be the "lodestar" figure in determining a reasonable attorneys fee. Weinshel v. Willott, LLC, 7, Docket No. CV03-0405088, Superior Court, Judicial District of Fairfield at Bridgeport (Arnold, J., November 9, 2006), 2006 Ct.Sup. 20856. There was no testimony, expert or otherwise, as to the lack of quality of the plaintiff's representation. The defendant did prove that she paid successor counsel in the probate court, (Cummings Lockwood, recommended and arranged by the plaintiff) some $41,000 in legal fees, but there was no credible evidence that plaintiff's representation caused those fees to be higher than they otherwise would have been. The defendant did not counterclaim for malpractice or even — so far as the evidence shows — protest the plaintiff's fees at any time prior to the initiation of this collection action, and she made a substantial partial payment of $5,000 in 1998 after being represented by the plaintiff for more than eighteen months.
The court holds that there is no requirement that the plaintiff's fee, based on an express hourly rate fee agreement, be found to be reasonable in order to be enforced. Even if there was such a requirement the defendant has failed to make even a prima facie showing of unreasonableness. Although not binding as a matter of collateral estoppel, the court is mindful of and has considered the fact that the Greenwich Probate Court has approved a final account in the Estate of Mario Tucci which allows no estate assets to be utilized to pay the plaintiff's claimed fees. But that order was an approval of the very lengthy and detailed account of the administratrix without any articulation as to the reason why the plaintiff's fee was not to be paid from estate funds, as the same probate court had done in 1995 in disapproving the fees of Bleakley Schmidt and D'Arcangelo Co. with a detailed analysis of the Haywood v. Plant and Rule 1.5(a) standards. (Exhibit 1.) The probate court's summary approval of the final account in 2001 (Exhibit J) could have been no more than acquiesence to the defendant's decision not to pay the Constas legal fees with estate funds, knowing that the plaintiff would then be relegated to pursue his Superior Court remedies under Conn. Gen. Stat. § 52-570a. The court is not convinced that the plaintiff's fees should be disallowed in whole or in part because of the probate court's approval of the final account in the Mario Tucci estate.
Interest
The plaintiff has produced no evidence of any agreement by the defendant to pay interest on unpaid fees. Nor has he cited any statutory entitlement to interest. The court has considered, nonetheless, whether discretionary interest should be awarded under Conn. Gen. Stat. § 37-3a, and has declined to do so. The defendant's failure to pay the plaintiff was largely due to her belief that the probate court's approval of her final account relived her of any further obligation to pay legal fees to the plaintiff. See Wallenta v. Moscowitz, 81 Conn.App. 213, 245 (". . . a court must weigh equitable considerations when deciding whether prejudgment interest should be awarded to a plaintiff . . .")
Counsel Fees
There is no basis or authority for the plaintiff's claim for an award of counsel fees.
Conclusion
On Count 1 (breach of contract) and Count 5 (individual liability of defendant) the plaintiff is entitled to recover unpaid legal fees of $40,600 and costs and disbursements of $1,025.05 or a total of $41,025.05 less a $5,000 credit to the defendant for the payment made on January 15, 1998 for a net recovery of $36,025.05. Pretrial interest and counsel fees are not awarded. The court therefore makes no ruling on Counts 2, 3, and 4.
B. Estate of Mary Tucci ('65 case)
The retention letter agreement in the case against Mary Tucci is in evidence as Exhibit 6. The court finds that it obligates the defendant in both her representative and individual capacities to pay for the plaintiff's legal services on behalf of the Mary Tucci estate at the rate of $200 per hour plus disbursements and expenses. In his complaint the plaintiff alleges that he charged a total fee of $18,500 in conformity with this agreement for representation of the Mary Tucci estate, of which $6,000 was paid prior to the commencement of this action [leaving a claimed balance due of $12,500]. The only bill for legal services to the Mary Tucci estate which came into evidence is Exhibit 9 which is plaintiff's statement of December 26, 1996 for services rendered to the Mary Tucci estate from August 1996 to December 26, 1996 in the total amount of $12,400. The exhibit itself contains a pencil notation at the top of page one that it was "pd. 1/2/97." The defendant testified that she paid this bill by check no. 371 drawn on the escrow account of Mary Tucci and Gina Tucci on December 31, 1996 payable to Harry Constas in the amount of $12,400. (Exhibit A.) Plaintiff acknowledges receipt and negotiation of the $12,400 check, but insists that it was not in payment for his legal services in the Mary Tucci estate. He offered several conflicting explanations: that the December 31 check was ". . . for services that were rendered prior to this time frame." (Tr. 8/1/06 p. 137); that the $12,400 check was for services rendered to the Mario Tucci estate. (Tr. 8/1/06 pp. 139-140); that the check was in payment of services rendered in connection with his "Tucci non-estate file." (Tr. 8/2/06 p. 41.)
The court rejects all the plaintiff's explanations and finds by a clear preponderance of the evidence that the $12,400 check of December 31, 1996 (Exhibit A) was tendered by the executor of the Estate of Mary Tucci and accepted and negotiated by the plaintiff in full payment of his statement of December 26, 1996 for legal services rendered to the Estate of Mary Tucci in the amount of $12,400. (Exhibit 9.)
Since the plaintiff has admitted in his complaint and in his testimony (Tr. 8/1/06 p. 135) that he was paid $6,000 for his services in representing the Estate of Mary Tucci, (which is therefore not claimed in this lawsuit) and since the court has found that $12,400 was paid in December 1996, the only amount at issue with regard to the plaintiff's claimed $12,500 in total fees is the de minimis sum of $100. In the absence of confirming documentary proof in the form of an admissible statement for services rendered, the plaintiff has failed to meet his burden of proof that he actually expended time or incurred disbursements in the Mary Tucci Estate in an amount greater than the $12,400 bill of December 26, 1996. (Exhibit 9.) Plaintiff's attempts to provide the amounts of additional billings by his verbal testimony were unconvincing because of his serious lack of credibility as a witness. The court has already referenced his conflicting testimony regarding the services paid for by the $12,400 check of December 31, 1996 (Exhibit A). During his testimony the plaintiff repeatedly referred to his faulty memory. "My memory is not that great" (Tr. 8/1/06 p. 10.) "My memory isn't too good. (Tr. 8/1/06 p. 22.) "My memory is defective" (Tr. 8/1/06 p. 129.) "Q. Does your defective memory affect your ability to testify about all of the services that you rendered to Ms. Tucci. A. There are certain things that are very clear in my mind, but not everything. I have had four heart attacks and you naturally get affected." (Tr. 8/1/06 p. 129.) His testimony as to amounts billed in the Mary Tucci estate is also seriously called into question by his admission that at one time he maintained just one master bill for services in both estates. (Tr. 8/1/06 p. 142.) He explained in more detail in his letter of March 15, 2006 to defendant's counsel, Atty. Catherine Whelan (Exhibit H):
Billing for both estates was done by combining the time devoted to both in one bill since a portion of the services served both estates, there being 2 actions brought against D'Arcangelo based on the same facts, and seeking the same relief, making it difficult to determine which estate should be billed. Accordingly, since the 2 estates were represented by the same person, and the heirs/beneficiaries were the same, it did not make any monetary difference which was billed.
Atty. Constas further explained in that letter that he was asked by replacement counsel to separate the billings, and that he asked his assistant to separate the billings in preparation for the trial of this case. He specifically says "I tried to sort things out by correcting the former bill for Mary's estate." (Exhibit H.) No "corrected bill" for Mary's estate is in evidence. In the absence of a detailed item-by item corrected bill which could be cross-checked against the bills rendered in the Mario Tucci estate, this court would be unable to find that any particular time entry had not been double billed.
The finding that $12,400 has been paid therefore constitutes a complete defense to the $12,500 claim in the Mary Tucci estate, and the court finds for the defendant on all counts in the `65 case.
Order
In Docket No. CV01-0182864S, judgment is entered for the plaintiff in the amount of $36,025.05 plus taxable costs. Prejudgment interest is not awarded. Counsel fees are not awarded. In Docket No. CV01-0182865, judgment is entered for the defendant, and the defendant is awarded taxable costs.
Alfred J. Jennings, Jr., Judge