Opinion
No. CV 09 5011943
September 30, 2011
I BACKGROUND
What should have been a simple breach of contract action for nonpayment of work done by the plaintiff on the defendant's house morphed into a two-year lawsuit, fueled mainly by the defendant's conduct throughout the proceedings and trial, raising claims that were baseless and at times all out lies. What makes this even more egregious is that the defendant is an attorney admitted to practice to law in this state.
The defendant represented himself during the entire matter.
The suit arises out of a written contract between the plaintiff, through its principal, Edward Sziabowski, and the defendant, Neil Johnson, to repair and renovate a chimney and fireplace at the defendant's home. The defendant hired the plaintiff to do the work and agreed to pay the plaintiff $13,500 pursuant to the written contract. During the course of the work, he falsely told the plaintiff that he was transferring money from an investment account to pay for the work, in order to induce the plaintiff to continue with and complete the work. Upon completion of the work, the defendant made no complaints about the work, but did not pay a balance owed under the contract of $5,000.
The defendant's behavior during the time the plaintiff was attempting to collect the balance owed was nothing short than outrageous. For example, in one instance when the defendant answered his cell phone identifying himself as Neil Johnson, when he discovered it was Sziabowki calling to collect his money, he began to speak in a falsetto tone, and said Neil Johnson was not available.
On June 28, 2011, a jury returned a verdict in favor of the plaintiff, Creative Masonry Chimney, LLC, against the defendant, Neil Johnson, on counts of breach of contract, fraud, and violation of the Connecticut Unfair Trade Practices Act (CUTPA). On the fraud count and the CUTPA, the jury found that the plaintiff is entitled to punitive damages. Compensatory damages were assessed in the amount of $7,700. On the verdict forms, the court indicated that it would make the determinations of any punitive damages. The court accepted and recorded the verdict on June 28, 2011.
On July 7, 2011, the defendant filed a motion to set aside the verdict and either enter a verdict for defendant or order a new trial. On July 22, 2011, the plaintiff filed a motion for punitive damages, as well as attorneys fees. On July 28, 2011, the plaintiff filed a motion for prejudgment interest, followed by a bill of costs. The court held an evidentiary hearing on September 8, 2011, to address the motions.
II DISCUSSION A. Motion to set aside verdict
The defendant is seeking to set aside the verdict because he argues the verdict is contrary to law based on various claims relating to the court's charge to the jury, evidentiary rulings, and against the evidence.
"The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence . . . [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles." Allion v. Manetta, 284 Conn. 389, 405, 933 A.2d 1197 (2007). "[T]he role of the trial court on a motion to set aside the jury's verdict is not to sit as a seventh juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did . . . A verdict is not defective as a matter of law as long as it contains an intelligible finding so that its meaning is clear . . . A verdict will be deemed intelligible it is clearly manifests the interest of the jury." (Internal quotation marks omitted.) Hall v. Bergman, 106 Conn.App. 660, 680, 943 A.2d 515 appeal dismissed, 288 Conn. 903 (2008).
The defendant's claims appear to fall into three categories: (1) jury charge; (2) evidentiary rulings; and (3) verdict is contrary and against the evidence. With regard to the issue of the jury charge, the defendant provides no supporting memorandum of law regarding his claims that the charge is incorrect. The court is satisfied that the instructions that it provided to the jury comport with the required elements, relevant statutes, burden of proof, etc. and were substantially correct and well justified by the evidence. The defendant provided no real specific charges to the court, other than the "canned" charges available.
It is almost impossible to determine what exactly the defendant is claiming to support an argument that the verdict should be set aside. The motion is not organized in such a manner that would provide some guidance to the court to address each issue.
As to the evidentiary rulings, the court will not address these claims and revisit its rulings.
The defendant also claims that the verdict is contrary and against the evidence. The jury found for the plaintiff on the three-count complaint: breach of contract, fraud, and a violation of CUPTA. The jury was provided with interrogatories as to each count. Based upon the evidence presented as applied to the elements of each count, the court does not find the verdict is contrary to the evidence presented.
The motion to set aside the verdict is denied.
B. Punitive Damages
The plaintiff seeks a punitive damage award of $15,400 under the CUTPA claim, which amounts to two times the total amount of the verdict in his favor of $7,700. The plaintiff argues that the jury found that the conduct of the defendant was outrageous and committed with either a reckless indifference to the rights of the plaintiff, or that it was committed with an intentional and wanton violation of the plaintiff's rights. It points to the claims made by the defendant during the course of the proceedings which were baseless. Moreover, the evidence demonstrates that the defendant lied not only to the plaintiff, but to the jury as well. Further examples of the defendant's egregious actions are that he made false statements to the plaintiff in order to hinder the plaintiff's just collection of a debt; baseless accusations that the plaintiff was employing "illegal aliens" and would be referring the plaintiff for such violations of federal and state law.
The claims about the plaintiff's employees were based only on the defendant's "observations" because of the employees' ethnicity and country of origin.
Under CUTPA, General Statutes § 42-110g(a) provides in relevant part that "[t]he court may, in its discretion, award punitive damages . . ." 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). "In order to award punitive or exemplary damages evidence must reveal a reckless indifference to the rights of others or an intentional or wanton violation of those right . . . In fact, the flavor of the basic requirement to justify an award of punitive damage is described in terms of wanton and malicious injury, evil motive and violence." Id., 622. "The legislature departed from the narrow scope of common law punitive damages, however, when it adopted § 42-110g(a) of CUTPA, which provides that the court may, in its discretion, award punitive damages . . . as it deems necessary or proper. See Bailey Employment System, Inc. v. Hahn, 545 F.Sup. 62, 72 (D.Conn. 1982). This statutory provision allows for punitive damages based on a theory of deterrence, whereas the common law premise of such an award is compensation." (Internal quotations omitted.) Lenz v. CNA Assurance Company, 42 Conn.Sup. 514, 515, 630 A.2d 1082 [ 9 Conn. L. Rptr. 87] (1994).
Although the law is not well developed as to 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." Whitaker v. Taylor, 99 Conn.App. 719, 733, 916 A.2d 834 (2007).
The defendant's conduct was found to be in violation of CUTPA, which would allow the court to award punitive damages in its discretion. The court finds that the defendant's conduct reflects a reckless indifference to the rights of the plaintiff, and an intentional violation of its rights justifying an award of punitive damages. There is no question that the conduct by the defendant is offensive and qualify for an award of punitive damages.
The defendant, a practicing attorney, has been referred to the Disciplinary Counsel for his actions related to this matter. Admitted at this hearing was the order by the court in that action, together with an affidavit by the defendant, wherein he admitted to threatening to "present criminal charges relating to the immigration status of the plaintiff's employees" and using his position as an attorney to intimidate the plaintiff "to avoid honoring [his] obligation." Although there was no objection to the admission of the order and affidavit, the court does not rely on these in determining the award of punitive damages. The court is basing its determination of punitive damages upon the evidence at trial, as well as the jury's findings of fact, and verdict.
The court grants the motion for punitive damages and awards punitive damages in the amount of $23,100 in addition to the award of compensatory damages of $7,700.
B. Attorneys Fees
Although an award of punitive damages under the CUTPA claim is warranted for the reasons set forth herein, attorneys fees and costs may also be awarded to the prevailing plaintiff in a CUTPA case subject to the sound discretion of the court. See MedValUSA Health Programs, Inc. v. MemberWorks, Inc., 109 Conn.App. 308, 315-16, 951 A.2d 26 (2008); Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 ("[a]warding punitive damages and attorneys fees under CUTPA is discretionary"). "The plaintiff who establishes CUTPA liability has access to a remedy far more comprehensive than the simple damages recoverable under common law. The ability to recover both attorneys fees; General Statutes § 42-101g(d); and punitive damages; General Statutes § 42-101g(a); enriches the private CUTPA remedy and serves to encourage private CUTPA litigation." Hinchliffe v. American Motors Corp., 184 Conn. 607, 614, 440 A.2d 810 (1981). The "entitlement to recover attorneys fees stands on a different footing" than the availability of punitive damages in a CUTPA case. New England Custom Concrete, LLC v. Carbone, 102 Conn.App. 652, 667, 927 A.2d 333 (2007) (request for punitive damages in connection with a CUTPA claim denied because the wrongful conduct fell short of the standard but case remanded to the trial court for a hearing on the appropriateness of awarding attorneys fees).
"General Statutes § 42-110g(d) provides in relevant part that, in any action in which a person alleges damages resulting from an unfair trade practice prohibited by § 42-110b of CUTPA, 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 the recovery . . ." Smith v. Snyder, 267 Conn. 456, 470, 839 A.2d 589 (2004). "It is well established that a trial court calculating a reasonable attorneys fee makes its determination while considering the factors set forth under rule 1.5(a) of the Rules of Professional Conduct . . . A court utilizing the factors of rule 1.5(a) considers, inter alia, the time and labor spent by the attorneys, the novelty and complexity of the legal issues, fees customarily charged in the same locality for similar services, the lawyer's experience and ability, relevant time limitations, the magnitude of the case and the results obtained, the nature and length of the lawyer-client relationship, and whether the fee is fixed or contingent." (Citations omitted; internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 259, 828 A.2d 64 (2003).
The plaintiff has moved for an award of attorneys fees and costs for the work performed in this matter. In support of the motion, the plaintiff's counsel has submitted an affidavit of attorneys fees outlining his background and experience, and copies of invoices sent to the plaintiff detailing a description of services rendered and costs. He seeks an award of fees of $84,570 calculated as follows: $300 per hour of work performed by Attorneys Schoenhorn, Sorokin, and Packman, and $250 per hour of work performed by Attorney Sanetti, multiplied by 286.50 total hours work on the matter. The plaintiff also presented the testimony of Attorney Kathleen Eldergill who submitted an affidavit as well as testifying in person. She testified that a fee for Attorney Schoenhorn in the amount of $450 per hour is a reasonable fee for his services, based upon her familiarity with Attorney Schoenhorn's background, skill and experience. As she is aware of the reduced fee agreement in this case, she stated that a "blended rate" of $300 per hour for the work performed by Attorney Schoenhorn as well as his associates and staff is a "reasonable rate charged throughout the community for the services rendered in this case."
Some of the legal work may have been performed in relation to the attorney grievance proceeding against the defendant. Attorneys fees related to the underlying issues of the CUTPA claim may be awarded even if they are not expressly labeled as work on the CUTPA claim. Heller v. D.W. Fish Realty Co., 93 Conn.App. 727, 734-35, 890 A.2d 113 (2006). In Heller, the plaintiffs could not "distinguish" the amount of attorneys fees related to their CUTPA claim alone from those related to their breach of contract and negligence claims. The court held that "[General Statutes] § 42-101g(d) encompasses claims related to the prosecution of a CUTPA claim . . . not only [the] one claim explicitly labeled as a CUTPA claim." (Citation omitted; internal quotation marks omitted.) Id., 735.
Furthermore, as to Count two, fraud, the jury found in favor of the plaintiff and awarded punitive damages. The court indicated on the verdict form that the court would determine the amount of any punitive damages. Punitive or exemplary damages under Connecticut common law are interchangeable labels for damages awarded under certain circumstances to compensate a party for all expenses of litigation. Alaimo v. Royer, 188 Conn. 36, 42-43, 448 A.2d 207 (1982); Caufield v. Amica Mutual Ins. Co., 31 Conn.App. 781, 786, 627 A.2d 466 (1993). In this case, the jury found in favor of the plaintiff on the count of fraud, which justifies the imposition of punitive damages. Punitive damages are limited to the costs of litigation less taxable costs. Waterbury Petroleum Products, Inc. v. Canaan Oil Fuel Co., 193 Conn. 208, 347-48, 477 A.2d 988 (1984). Within that limitation the extent such damages are awarded is within the discretion of the court. Chykirda v. Yanush, 131 Conn. 565, 568, 41 A.2d 565 (1945); Wedig v. Brinster, 1 Conn.App. 123, 134, 469 A.2d 783 (1983).
In ascertaining the reasonableness of the attorneys fees, the court is guided by the Rules of Professional Conduct. Rule 1.5(a) of the Rules of Professional Conduct provides: "A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of the fee include the following: "(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) The likelihood, if made known to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) The fee customarily charged in the locality for similar legal services; (4) The amount involved and the results obtained; (5) The time limitations imposed by the client or by the circumstances; (6) The nature and length of the professional relationship with the client; (7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) Whether the fee is fixed or contingent." Rules of Professional Conduct 1.5.
Considering the relevant factors, and under all the circumstances, the court finds the work of the plaintiff's counsel was competently and efficiently prepared and presented. The matter, although not a complex one, was made so by the defendant's lack of preparation, baseless claims and motions, and although damages awarded were not extensive, the plaintiff's claims were zealously represented.
Based upon all of these factors, the court awards attorneys fees in the amount of $56,380, plus costs in the amount of $1,222.25, plus fees of $1,912.50 due Attorney Kathleen Eldergill.
C. Motion for prejudgment interest
The plaintiff is seeking, pursuant to Practice Book § 17-18 and General Statutes § 52-192a, an award of prejudgment interest. On September 30, 2010, the plaintiff filed an Offer of Compromise in the amount of $15,500. The offer of compromise was not accepted by the defendant within thirty days nor prior to the rendering of a verdict by the jury or an award by the court.
The offer of compromise is embodied in § 52-192a. Subsection (c) provides, in relevant part, that "[a]fter trial the court shall examine the record to determine whether the plaintiff made an offer of compromise which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain specified in the plaintiff's offer of compromise, the court shall add to the amount so recovered eight per cent annual interest on said amount . . . The court may award reasonable attorneys fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly." General Statutes § 52-192a(c). "Our courts have consistently held that prejudgment interest is to be awarded by the trial court when a valid offer of judgment is filed by the plaintiff, the offer is rejected by the defendant, and the plaintiff ultimately recovers an amount greater than the offer of judgment after trial . . . Moreover, an award of interest under § 52-192a is mandatory, and the application of § 52-192a does not depend on an analysis of the underlying circumstances of the case or a determination of the facts . . . The statute is admittedly punitive in nature . . . It is the punitive aspect of the statute that effectuates the underlying purpose of the statute and provides the impetus to settle cases . . . The purpose of § 52-192a is to encourage pretrial settlements and, consequently, to conserve judicial resources . . ." (Emphasis added; citations omitted; internal quotation marks omitted.) Cardenas v. Mixcus, 264 Conn. 314, 321, 823 A.2d 321 (2003).
The court grants the motion for prejudgment interest, and awards interest at the rate of 8 percent to be calculated from July 1, 2009, to date, which the court finds to be $2,754.
III CONCLUSION
For all the foregoing reasons, the court hereby denies the defendant's motion to set aside the verdict, and orders judgment as follows:
Compensatory damages: $7,700.00
Punitive damages: $23,100.00
Attorneys fees: $56,380.00
Costs: $1,222.25
Expert costs: $1,912.50
Prejudgment interest $2,754.00