Opinion
No. CV 03 0822125S
April 10, 2006
MEMORANDUM OF DECISION
In this case, plaintiff David M. Somers Associates, P.C., an Avon, Connecticut law firm, has sued defendant Lori C. Busch, its former client in a marital dissolution action, for breach of contract based upon her alleged failure and refusal to pay it for legal services assertedly rendered to her under a written retainer agreement ("Retainer Agreement") dated September 10, 1998. In its one-count Complaint dated December 19, 2002, the plaintiff claims that under the terms of the Retainer Agreement, which was attached to the Complaint as Exhibit A, the defendant owes it an outstanding balance of $13,124.62 for services rendered to her through July 2, 1999, which sum she has failed and refused to pay it despite demand therefor. As relief for the defendant's alleged non-payment and resulting breach of contract, the plaintiff seeks to recover not only the entire balance allegedly due and owing to it as aforesaid, but interest on that balance at the rate of 12% per annum plus attorneys fees and costs in connection with this action, as assertedly provided in the Retainer Agreement. Id., p. 2.
The defendant has answered the plaintiff's complaint by admitting that she retained the plaintiff to represent her in connection with her dissolution action, that the plaintiff represented her in that action under the subject Retainer Agreement, and that she has refused the plaintiff's demand for payment under that Agreement of the sum of $13,124.62. Answer, Special Defense and Counterclaim (3/10/03): Answer, ¶¶ 1-2, 5. She has denied, however, that the latter sum due and owing to the plaintiff for services rendered to her under the Retainer Agreement through July 2, 1999; id., ¶ 5j; and has interposed two separate special defenses to the plaintiff's claim. Id., Special Defenses, pp. 2-3. As her First Special Defense, the defendant claims as follows that the parties' Retainer Agreement was void ab initio: CT Page 6797
1. The plaintiff was disbarred from the practice of law and failed to inform the defendant up until the last day he performed any services for her. Plaintiff knew or should have known that he would most likely be unable to represent the defendant in her divorce up to the conclusion of the matter. Based upon this knowledge and plaintiff's failure to inform defendant of his circumstances and the possibility of losing his license, defendant was denied the required full and fair disclosure when executing the retainer agreement, or at a later date during his representation of her. This omission by the plaintiff is contrary to the Rules of Professional Conduct as follows:
(a) Rule 1.3 Diligence: The plaintiff failed to act with proper diligence in representing the defendant in that, had he informed her of his pending disbarment, she would have been properly able to evaluate whether or not she wished him to continue to represent her and bill her for further time spent on the file;
(b) Rule 1.4b Communication: The plaintiff failed to communicate the fact to the defendant that he was going to be disbarred and that there was pending action for disbarment against him, the result of which was that the defendant was unable to make an intelligent and reasonable decision about whether or not to let the plaintiff continue to represent her;
(c) Rule 1.7 Conflict of Interest: General Rule-The fact that the plaintiff was going to be disbarred created an inherent conflict in that it was in his best interest to bill as much as possible in defendant's matter and to file as many frivolous motions in court as many times as possible prior to his disbarment;
(d) Rule 7.1 Communications Concerning Lawyer's Services: The plaintiff communicated a false and misleading statement in that he created an unjustified expectation about the results he could achieve since he knew or should have known that he would be disbarred prior to the conclusion of defendant's divorce action.
Based upon the foregoing and based upon equitable principles, the agreement is void ab initio.
Id., Special Defenses, pp. 2-3 (Emphasis in original).
As her Second Special Defense, the defendant claims that:
The plaintiff unnecessarily billed excessive hours, filed frivolous motions, expended unnecessary time in court on said motions, and made unreasonable demands in order to maximize his billing in the file. Based on the foregoing, the outstanding debt claimed is unsubstantiated.
Id., pp. 3-4. The plaintiff has denied both of the defendant's Special Defenses in their entirety. Reply to Special Defenses (3/17/03), p. 1.
As part of the same pleading in which she filed her Answer and Special Defenses, the defendant brought a Counterclaim against the plaintiff for alleged violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The Counterclaim was based upon allegations that: at the time of signing the Retainer Agreement, or at some time subsequent thereto, the plaintiff learned that there was a pending action for the disbarment of her attorney, David Somers, but failed to advise her thereof; Answer, Special Defense and Counterclaim (3/10/03): Counterclaim, ¶¶ 1-2; said failure to notify the defendant of the pendency of an action for the disbarment of Mr. Somers was a material misrepresentation and/or omission designed to induce the defendant to execute the Retainer Agreement and/or to keep the plaintiff as her counsel in her dissolution action; id., ¶ 3; the plaintiff, so retained, filed frivolous motions and billed excessive hours in order to maximize his billing in the dissolution action without regard to the defendant's interests or financial condition; id., ¶ 4; and said misrepresentations and/or omissions and actions were unfair and deceptive, and thus in violation of CUTPA. Id., p. 5. As relief on her Counterclaim, the defendant seeks compensatory damages, costs and reasonable attorneys fees, and punitive damages.
The plaintiff, as counterclaim defendant, has answered the defendant's Counterclaim by admitting that either at the time it signed the Retainer Agreement to represent the defendant in her dissolution action, or at some time after the execution of that Agreement, it learned that there was a pending action for the disbarment of Mr. Somers. Answer to Counterclaim (3/17/03), ¶¶ 1, 3. It has denied, however, all other allegations of wrongdoing made against it in the Counterclaim. Id., ¶ 2.
With the pleadings closed as aforesaid, this case went to trial before the Court on April 7 and April 13, 2004. Thereafter, following a lengthy delay for the preparation of trial transcripts, it was briefed by counsel, who presented final arguments on May 13, 2005.
Upon later researching the issues presented by the parties' pleadings and otherwise raised by the evidence introduced at trial, the Court determined that the parties should be required to submit supplemental briefs to address several issues that were potentially dispositive of this case. Accordingly, the Court issued a Supplemental Briefing Order dated September 16, 2005, to which the parties duly responded by filing supplemental briefs on November 28 and December 9, 2005.
The Supplemental Briefing Order required the parties to brief the following specific issues:
1. Whether or not the legal effect of counsel's disbarment before completion of all work he has agreed to perform for a client under a contract deprives him of any right to collect a fee for work performed under the contract? In particular, should the disbarment and resulting discontinuation of services be deemed a voluntary abandonment of the contract, and if so, should such a voluntary abandonment result in the forfeiture of services previously performed under the contract?
2. Alternatively, should the disbarment and resulting inability of the attorney to complete the work he contracted to perform be deemed to void the contract on the ground of impossibility, thus depriving him of any contract remedy for work performed before the disbarment?
3. Is either of the foregoing equitable grounds for defeating the plaintiff's right of recovery under the contract here at issue raised by the defendant's First Special Defense, which expressly invokes equitable principles as a basis for declaring the contract void based upon the plaintiff's failure to warn the defendant of his probable disbarment at or after the time he undertook the representation of her? Even if neither such ground is covered by the defendant's First Special Defense, must such an equitable defense be specially pleaded? If such an equitable defense must be specially pleaded, can the Court's consideration of it on the record of this case, where the possible voiding of the contract due to the disbarment of Attorney Somers was supported by evidence and argued by counsel, a permissible variance?
4. If, as a result of the application of either of the foregoing equitable defenses to the plaintiff's claim for recovery under its contract, the plaintiff is barred form recovering contract damages in this case, should the plaintiff nonetheless be entitled to recover the reasonable value of the services Attorney Somers rendered to the defendant? If so, on what basis: quantum meruit or unjust enrichment? What factors should affect the amount of the plaintiff's recovery under either restitutionary theory?
5. Does the plaintiff's complaint state sufficient facts to support a recovery in quantum meruit or unjust enrichment? If not, can recovery of compensation on either theory be awarded by the court by treating the theory as a permissible variance from the plaintiff's principal theory of express contract?
Based upon the evidence presented at trial, including several documentary exhibits and the testimony of three witnesses — Ms. Busch, Mr. Somers, and Attorney Susan Smith, who represented Ms. Busch's ex-husband in her dissolution action — and the post-trial arguments and briefs of counsel, the Court hereby makes the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
On September 10, 1998, defendant Lori C. Busch met with David M. Somers, a licensed Connecticut attorney who was then the President of and the sole lawyer employed by plaintiff David M. Somers Associates, P.C., an Avon, Connecticut law firm, for an initial consultation about obtaining a divorce from her husband, Carl Busch. Ms. Busch, a non-lawyer whose only prior dealings with lawyers had involved a house closing and the preparation of a will, was induced to contact the plaintiff, as opposed to other law firms, by its advertisement of a free initial consultation. Based upon discussions with friends who had previously been divorced, Ms. Busch expected that the total cost for legal services to obtain a divorce would range from $3,000 to $5,000.
Before contacting the plaintiff, Ms. Busch and her husband had discussed her plan to divorce him and reached agreement on the essential terms of a dissolution agreement. Thus, as she informed Mr. Somers, she and her husband had already agreed, inter alia: that they would share joint custody of their three minor children, ages 13, 12 and 11; that she would have physical custody of the children, but he would have reasonable, liberal and flexible rights of visitation with them; and that they would equally divide their marital assets, including all savings in his deferred compensation plan. As she further informed him, the only issues that still needed to be resolved between herself and her husband were the amounts of his alimony and child support payments. Mrs. Busch was well aware that her husband had had an extramarital affair with another woman. Even so, her overriding desire, which she communicated expressly to Mr. Somers and he specifically noted, was to obtain a divorce as quickly and as amicably as possible.
At the end of the initial consultation, which lasted approximately 1 3/4 hours, Mr. Somers surprised Ms. Busch by informing her for the first time that only the first fifteen minutes of her initial consultation had been free, and thus that she already owed him a fee for 1 1/2 hours of his time. This limitation upon her right to a free initial consultation had not been mentioned in the advertisement that first drew her to the plaintiff's office, nor had it otherwise been revealed to her at any point in the process of setting up or conducting the initial consultation. If, as claimed by Mr. Somers at trial, it was set forth on a sign posted somewhere in his office, the sign was not of sufficient size, clarity and/or prominence, either as written or as displayed, to give reasonable notice of its contents to potential clients of the plaintiff like Ms. Busch.
Contemporaneously with the making of this surprise revelation, Mr. Somers produced a pre-printed form Retainer Agreement for Ms. Busch's signature. In the Agreement, the plaintiff proposed to represent Ms. Busch in her dissolution action at the rates of $240 per hour for attorney time, $90 per hour for Legal Assistant time, and $30 per hour for clerical time "on special legal matters," to be charged against "the initial sum of Two Thousand Dollars ($2,500) [sic] as a legal fees retainer [. . .] and any subsequent retainers;" Retainer Agreement, ¶ 1; plus "all costs incurred in [her] legal matters . . . includ[ing], in part, service of process fees, filing fees, parking fees, telephone calls, expert witness fees, transcripts and any and all other costs and related [sic] to [her] case(s)." Id., ¶ 2. Though Ms. Busch had not intended to hire the plaintiff to represent her due to certain disturbing conduct by Mr. Somers during the initial consultation — specifically, his revelation of confidential information about other clients he had previously represented, including certain of her friends — she signed the Retainer Agreement as presented, without attempting to negotiate any of its terms. She did so, as she credibly explained in her testimony, because she thought that she already owed the plaintiff a considerable sum for her initial consultation, and thus she felt trapped.
By signing the Retainer Agreement, Ms. Busch understood and believed that she was engaging the plaintiff, through Mr. Somers, to represent her throughout her dissolution action, from start to finish. This understanding and belief, which Mr. Somers never sought to dispel, was confirmed by the following relevant provisions of the Retainer Agreement:
1. Employment: I hereby employ David M. Somers Associates, P.C. to act as my attorney in processing my dissolution of marriage proceedings.
2. Legal Fees Retainer: I understand and hereby agree to pay David M. Somers Associates, P.C. the initial sum of Two Thousand Dollars ($2,500) as a legal fees retainer. I understand and agree to pay an hourly attorneys fee of $240 that will be charged against this and any subsequent retainers. In addition, I agree that any outstanding invoices will be immediately paid in full from the proceeds of any lump sum payment of alimony arrearage, settlement or other award in the dissolution matter . . . I have not been promised any particular results by the firm of David M. Somers Associates, P.C.
* * * *
4. Invoices, Additional Retainers: I also authorize David M. Somers Associates, P.C. to issue invoices to me for charges incurred or any court costs or other expenses advanced in my behalf. However, it is clearly understood, as stated above, that during the pendency of my legal matters, that David M. Somers Associates, P.C. has the right to request payment of sums owing in excess of the initial retainers or additional retainer amounts by a date certain and that such requests shall be honored promptly within seven (7) days of request. It is expressly understood and agreed that failure of such payment by the deadline imposed shall entitle the attorney, at his option, to refuse to proceed with representation in the case and exercise his right to a retaining lien on case(s) files, or to seek to withdraw from representation in the case(s) with the Court [sic] approval.
5. Invoices: I understand that I will be invoiced each month, and that said invoice is immediately due in full, and payable upon receipt . . .
6. Interest: Collections Costs: I also understand that a one percent (1%) interest charge per month (twelve percent (12%) simple interest per annum) will be added to all outstanding amounts due from me to David M. Somers Associates, P.C. commencing thirty (30) days after the date of an invoice absent payment . . .
Lori C. Busch
[Address omitted.]
Retainer Agreement, ¶¶ 1-2, 4. (Emphasis in original.) Paragraph 1 clearly stated that the purpose of the engagement was to "process [the defendant's] dissolution of marriage proceedings." In common parlance, this language implied a mutual intention to obtain a final dissolution of her marriage in a court of law. Paragraph 2 thus set the date for final payment of all outstanding invoices as the date on which the defendant received "any lump sum payment of alimony arrearage, settlement or other award in the dissolution matter." No such "award" would logically be made until a final judgment of dissolution was entered by the court.
It is true, of course, that paragraph 2 also expressly stated that the defendant "ha[d] not been promised any particular result by the firm of David M. Somers Associates, P.C." In context, however, that statement did not contradict the plaintiff's implicit promise that it would continue to represent her until she obtained the "general result" of a final marital dissolution.
In fact, the only paragraph of the Retainer Agreement that expressly authorized the plaintiff to discontinue its representation of the defendant before obtaining a final dissolution of her marriage was paragraph 4. In that paragraph, the defendant agreed that, in addition to paying the plaintiff all legal fees described in paragraph 2, which would be "charged against this and all subsequent retainers[;]" id.; she could be required to pay the plaintiff all "sums owing in excess of the initial retainers or additional retained amounts[, if the plaintiff so requested] by a date certain[,] . . . within seven (7) days of [such] request." In this context, she was required to acknowledge that any "failure of such payment by the deadline imposed shall entitle the attorney, at his option, to refuse to proceed with representation in the case . . . or to seek to withdraw from representation in the case(s) with the Court [sic] approval." Id., ¶ 4. Implicit in this paragraph is the parties' mutual understanding that, in the absence of such a demand for payment by a date certain, the defendant's failure to make immediate payment of any sum for which she was invoiced under the Retainer Agreement would not entitle the plaintiff to discontinue its representation of her or to seek leave of court to withdraw from her case. Instead, any delay in her payment of such a sum, as regularly invoiced under paragraph 5 of the Retainer Agreement without demand for immediate payment, as provided in paragraph 4, would simply subject her, under paragraph 6 of the Agreement, to the addition of a "one percent (1%) interest charge per month obligation (twelve percent (12%) simple interest per annum) to all outstanding amounts due from [her] to [the plaintiff,] commencing thirty days after the date of an invoice absent payment." Id.
The Retainer Agreement did not specify, and Ms. Busch and Mr. Somers never discussed, either how many hours of legal work would probably be required to bring her dissolution action to conclusion, or how many additional retainer agreements, at what rates or in what amounts, she would be required to enter into in order to cover all the fees she would probably incur for that ultimate purpose.
After September 10, 1998, when Ms. Busch signed her Retainer Agreement, the plaintiff, through Mr. Somers, first helped her to commence her dissolution action, then represented her in that action until September 15, 1999, when Mr. Somers was disbarred by this Court, by the order of Judge John J. Langenbach, as set forth in a written Memorandum of Decision dated and issued one week earlier, on September 8, 1999. Mr. Somers had been presented for possible disbarment on the petition of the Statewide Grievance Committee on December 30, 1998, less than four months after the Retainer Agreement was signed. The charges on which he was presented, as described in Judge Langenbach's Memorandum of Decision, were that he had "testified falsely, counseled witnesses to testify falsely, engaged in several conflicts of interest, and brought meritless civil claims before the Superior Court in violation of Rules 1.2, 1.7, 1.8, 3.1, 3.4 and 8.4 of the Rules of Professional Conduct." Statewide Grievance Committee v. David M. Somers, No. CV-98-0585853-S (Hartford Superior Court, September 8, 1999, Langenbach, J.), p. 1. The Court heard testimony on those charges on six different days between April 20, 1999 and May 6, 1999, then heard final arguments on July 28, 1999, after the parties had filed post-trial briefs.
At no time during the pendency of his disbarment proceeding did the plaintiff advise the defendant of it, much less describe to her the charges on which Mr. Somers had been presented in it or warn her that if some or all of those charges were proved, he might soon be disbarred, and thus be unable to continue representing her in her dissolution proceeding On this score, Mr. Somers, who had consistently denied the charges and actively opposed the Statewide Grievance Committee's effort to disbar him, explained in his testimony that he did not tell Ms. Busch about the disbarment proceeding because he did not believe that he would be disbarred and felt, in any event, that he had any obligation to inform her of his possible disbarment.
As a result of this failure to disclose, Ms. Busch did not learn of Mr. Somers' possible disbarment until after it had already been ordered, when, on or about September 8, 1999, a friend called to tell her she had just read an article about it in the newspaper. When, in shock at hearing this news, Ms. Busch telephoned Mr. Somers to confirm what she had been told and to ask him how she should then proceed with her case, Mr. Somers simply informed her that he had indeed been disbarred, advised her not to worry because another lawyer would be appointed to take over her legal representation and pointedly reminded her, on more than one occasion, that she must still pay all the plaintiff's outstanding bills for services rendered and costs incurred in handling her case. In an Affidavit of Debt executed by Mr. Somers on April 7, 2004, which was introduced at trial along with the plaintiff's itemized monthly billing records for its engagement by the defendant under the Retainer Agreement as Plaintiff's Exhibit # 3, it is averred and claimed that the following sums are now due and owing under the defendant's Retainer Agreement: "Balance of principal" in the amount of $13,124.62; "Interest thereon at 12.00% per annum from 7/2/99 to 4/7/04, "the date of Mr. Somers' Affidavit, in the amount of $7,521.12; plus "all taxable costs of this action and the fees of the Plaintiff's attorney." Id.
The plaintiff's billings to the defendant can be broken down in general categories as follows:
Invoice Specific Charges Invoiced Total Invoiced Date Month Prof. Services (Cost) Other Charges (Cost) [New Balance] 10/5/98 9/98 ATTY 3.12 hrs ($748.80) $ 768.00 LA 0.2 hrs ($18.00) [($1,732.00)]* CL 0.04 hrs ($1.20) [* reflecting 9/10/98 payment of $2,500.00 retainer] 11/2/98 10/98 ATTY 3.2 hrs ($ 768.00) Filing Fee ($185.00) $1,124.20 CL 0.04 hrs ($ 1.20) Sheriff's Fee ($170.00) [($ 607.80)] 12/8/98 11/98 ATTY 0.6 hrs ($144.00) $ 144.00 [($ 463.80)] 12/31/98 12/98 ATTY 10.6 hrs ($2,544.00) Copies ($94.25) $2,716.50 LA 0.3 hrs ($27.00) Parking ($0.25) [$2,252.70] CL 1.7 hrs ($51.00) 2/5/99 1/99 ATTY 8.6 hrs ($2,064.00) Telephone ($0.80) $2,079.30 LA 0.1 hrs ($9.00) Parking ($2.50) [$4,302.00] ** CL 0.1 hrs ($3.00) [** reflecting courtesy credit of $30.00] 3/8/99 2/99 ATTY 2.0 hrs ($480.00) Interest on Overdue $ 526.85 CL 0.1 hrs ($3.00) Balance ($43.85) [$ 4,828.85] 4/9/99 3/99 ATTY 3.9 hrs ($936.00) Interest on Overdue $ 1,157.59 LA 1.8 hrs ($162.00) Balance ($50.34) [$ 5,986.44] CL 0.2 hrs ($6.00) Postage ($3.25) 5/18/99 4/99 ATTY 3.9 hrs ($936.00) Interest on Overdue $ 1,002.73 CL 0.1 hrs ($3.00) Balance ($63.73) [$6,792.30] *** [PAGE3] 6/14/99 5/99 ATTY 1.7 hrs ($408.00) Interest on Overdue $ 506.40 CL 0.4 hrs ($12.00) Balance ($52.40) [$7,296.83] Service Fee ($34.00) Invoice Specific Charges Invoiced//Total Invoiced] Date Month Prof. Services (Cost) Other Charges (Cost) [New Balance] 7/6/99 6/99 ATTY 11.3 hrs ($2,712.00) Interest on Overdue $ 2,848.02 LA 0.3 hrs ($27.00) Balance ($53.52) [$10,144.85] CL 0.5 hrs ($15.00) Service Fee ($39.00) Parking ($1.50) 8/6/99 7/99 ATTY 12.8 hrs ($3,072.00) Interest on Overdue $3,204.82 **** CL 0.8 hrs ($24.00) Balance ($64.68) [$11,349.67] ***** Copies ($28.25) Parking ($9.00) Phone ($4.80) Postage ($2.09) [**** erroneously totaled on the invoice as $3,218.23, but corrected when added to the new balance ***** reflecting 7/2/99 payment of $2,000.00] 8/31/99 8/99 ATTY 1.8 hrs ($432.00) Interest on Overdue $ 485.04 CL 0.3 hrs ($9.00) Balance ($44.04) [$11,863.67] ****** [****** erroneously based on prior balance of $11,378.63, and thus inflated by $29.04] 9/14/99 5/99 ATTY 4.9 hrs ($1,176.00) Interest on Overdue $ 1,260.95 CL 0.8 hrs ($24.00) Balance ($57.95) [$13,124.62] ******* Parking ($3.00) [******* erroneously carrying forward computational error on previous invoice of $29.04] By way of summary, this chart reflects the following total billings to the defendant in connection with her representation by the plaintiff under the Retainer Agreement: a combined sum of $16,816.20 for professional services, consisting of $16,420.80 for 68.42 hours of attorney time, $243.00 for 2.7 hours of legal assistant time, $152.40 for 5.08 hours of clerical time, all billed at their contractually specified hourly rates; a further sum of $577.69 for all costs and expenses incurred by the plaintiff in conducting the representation; and a final sum of $430.51, charged as interest on the defendant's overdue balance on her unpaid invoices. The grand total of such billings, itemized as aforesaid in Plaintiff's Exhibit #3, is $17,824.40. The difference between that total and the defendant's total payments and credits of $4,730.00 is $13,094.40.Against this background, the plaintiff is incorrect in its assertion that, if the parties' contract remains enforceable according to its terms, the defendant now owes it the greater sum of $13,124.62 plus interest on that sum, calculated at the rate of one percent (1%) per month (twelve percent (12%) simple interest per annum) from July 2, 1999, when the defendant made her final payment of $2,000.00, to the present. Not only has the plaintiff miscalculated the difference between its total billings and the defendant's total payments and credits under the Retainer Agreement, as previously noted, but it has made other incorrect assumptions as to when and how interest may be charged on the defendant's unpaid balances, if in fact they are payable thereunder.
First, although interest payable under the Agreement begins to run on any unpaid balance of fees or costs for which the defendant has been invoiced thereunder on the date when the invoice is issued, it would not be due and owing to the plaintiff, and thus could not be added as a charge to the amount of any later invoice, until the balance remained unpaid for a full thirty days after initial billing. In that event, simple interest of one percent (1%) one month would be charged to the defendant, provided that percentage was applied only to the principal amount of any unpaid balance that had not been paid within thirty days of invoicing, not the amount of any unpaid interest on that unpaid principal which had previously been added to defendant's bill. If interest were charged on unpaid interest as well as unpaid principal, the interest charged would be compound, not simple, and thus would violate the Agreement.
In this case, then, if it is determined that the defendant owes the plaintiff interest on any balance she failed to pay within thirty days of invoicing, the amount of such interest must be calculated by applying the contractually specified interest rate to the difference between the total amount invoiced and the sum of all prior interest charges included in the invoice but not yet paid. Here, then, presuming that the defendant's $200.00 payment to the plaintiff on April 17, 1999 was first applied to all unpaid interest charges for which she had previously been invoiced, and, similarly, that her July 2, 1999 payment of $2,000.00 was first applied to all unpaid interest charges for which had been invoiced between April 17 and July 2, 1999, the amount of any interest due and owing from her on unpaid balances under the Retainer Agreement after July 2, 1999 must be calculated as follows. The maximum amount of interest potentially due and owing to the plaintiff on the defendant's unpaid principal balance, as invoiced to her on July 6, 1999, would thus be calculated by applying the contractually specified interest rate to the difference between the total "Balance due" thereunder ($10,144.85) and the amount charged therein as "Interest on overdue balance" ($53.52), with interest running from July 6, 1999, the date of the invoice, to the present. Similarly, the maximum amount of any additional interest potentially due and owing to the plaintiff on any other sum later invoiced to the defendant, either on August 8, August 31 or September 14, 1999, would be calculated by applying the contractually specified interest rate to the difference between the amounts listed in each such invoice as the "Total amount of this bill" and "Interest due on overdue balance." Interest would run on each such additional sum, so invoiced, from the date of the invoice until the present. For these reasons, the plaintiff's suggestion that interest, if awardable in this case, would be calculated by applying the contractual interest rate to the difference between the total amount billed to the defendant as of September 14, 1999 and her total payments and credits, with interest running from July 2, 1999 through the present, must be rejected.
The defendant has challenged several aspects of Mr. Somers' personal representation of her, including: his alleged resistance to and frustration of all efforts to bring her dissolution action to a speedy, amicable conclusion, contrary to the defendant's stated wishes and best interests; his fostering of hostility between the parties and their attorneys, thus prolonging the action and leading to its overlitigation; and, as part of the foregoing, his alleged filing and prosecution of frivolous motions and other pleadings, all at great and unnecessary expense, without moving the case any closer to final resolution. The defendant claims that Mr. Somers' reason for handling her case in this costly, unproductive manner was to bill her as much as possible before, as he allegedly expected, he was ultimately disbarred.
The defendant first faults Mr. Somers for serving her husband with non-standard interrogatories concerning the details of his compensation arrangements. A self-employed business consultant whose income varied with each of his engagements, Mr. Busch's income was hard to pin down — a veritable "moving target." Since the defendant wished to have him pay her more money in pendente lite alimony and child support than he was willing to pay her voluntarily, and the defendant did not appear to trust him in light of his recent affair, Mr. Somers felt it prudent to require him to provide certified answers to detailed questions about his current financial situation instead of settling for the more general, uncertified, and potentially less forthcoming answers he feared he might receive in a voluntary exchange of standard discovery, as proposed by Mr. Busch's counsel, Attorney Smith. In the end, by successfully pressing his request for such discovery, Mr. Somers was able to demonstrate, at a January 13, 1999 hearing before Judge Thomas A. Bishop, that Mr. Busch's weekly income was greater than he had described it in his financial statement. On that basis, he obtained at least a temporary $200 increase, from $950.00 to $1,150.00, in the amount of his client's weekly, unallocated payment of pendente lite alimony and child support to the defendant. The increase remained in place until August of 1999, when, after another hearing, it was modified downward to its original level by Judge Herbert Gruendel.
The defendant, in her testimony, asserted that filing the non-standard interrogatories was not at all necessary, for she trusted her husband to tell the truth about his salary and assets, looking out as he did so, for the best interests of his children. To challenge her husband's credibility on this subject, she claims to have believed, could only have upset him and caused great tension between them. It was also completely unnecessary, she asserts, and thus a great waste of time and money, in light of her own professed familiarity with her husband's compensation arrangements and his lawyer's proclaimed willingness to cooperate in the exchange of all standard discovery information, plus all relevant details concerning his self-employment compensation practices. As a result of this and other alleged acts of belligerence by Mr. Somers towards her husband and his lawyer, the defendant claims that her husband was so angered that their relationship suffered badly and their children became extremely upset as hostile tension built up around them.
Mr. Somers testified, however, and the record clearly confirms, that preparation and service of such interrogatories, which only took two hours of his time, made a real difference in increasing the amount of the defendant's alimony and support payments. The Court thus cannot find that the preparation and service of such discovery had no value to the defendant. To the contrary, the Court finds that it was a reasonable expenditure of time and money from which the defendant, who did not in fact oppose it, directly benefitted.
The Court is also unprepared to find, as asserted by the defendant, that Mr. Somers' service of non-standard interrogatories upon her husband contributed substantially to the poisoning of the relationship between them or to the emotional tension suffered by their children in the wake thereof. The parties' relationship had already broken down irretrievably by the time of the defendant's initial meeting with Mr. Somers, with the precipitating event of the breakdown her emotionally charged discovery of her husband's affair. If Mr. Somers looked askance at his client's husband's credibility, especially on the subject of his income and assets, which might have been strained severely by carrying on the affair, he could hardly be blamed for his skepticism, especially in the face of the husband's unwillingness to pay what his client wanted in alimony and child support.
Of greater concern, however, are the defendant's claims that Mr. Somers violated her express directives by delaying and taking positions contrary to her expressed desires and interests in the dissolution action. First, she accuses him of untruthfully representing to opposing counsel that she wished to have a 60-40 split of the couple's marital assets when, as she claims she always told him, all she ever wanted was a straight 50-50 division of those assets. The Court finds that Attorney Somers advanced this proposal on his own, without his client's approval, by including it for the first time in a draft separation agreement he sent to opposing counsel for settlement purposes on or about July 2, 1999. The Court believes that the essential purpose of this proposal was not substantive but tactical — specifically, to gain leverage over the defendant's husband in negotiating the financial terms of the parties' final separation agreement. The new proposal, which Mr. Somers expressly purported to base upon the husband's extramarital affair and alleged mismanagement of the couple's finances, was clearly put forth to persuade the husband that if he played hardball in settlement negotiations, then his wife would play hardball in the ensuing trial if a satisfactory settlement was not reached.
In fact, neither the belated proposal of a 60-40 split of marital assets nor any other issue that divided the parties at the time of Mr. Somers' disbarment was ever discussed in a four-way conference among the parties and their lawyers. This is so because Mr. Somers, whose attention was directed elsewhere in the Spring of 1999, had persistently refused to schedule one. To that end, he untruthfully told opposing counsel that, while he personally could see the benefit of holding such a conference, his client would not agree to participate in one until she had received and approved of a detailed written agenda for the conference. The defendant flatly denies that she ever made such a demand, and a series of letters from Mr. Somers to opposing counsel between February and May of 1999 tends to support her denial. The letters show, in particular, that it was Mr. Somers, not his client, who first suggested that no four-way conference be held until opposing counsel and her client "first provide[d] a proposed Separation Agreement for Mrs. Busch's consideration;" Plaintiff's Exhibit #7 (Letter from David M. Somers to Susan Smith, Esq. dated 2-11-99). "Thereby," he explained in the letter, "we can identify and isolate any issues for a more cost-effective and expeditious processing of this case." Id. Six weeks later, however, after Attorney Smith had sent just such a settlement proposal to him, Mr. Somers changed his tack completely by simply announcing that his client had already rejected the proposal, and thus that there was "no reason to meet." Plaintiff's Exhibit #7 (Letter from David M. Somers to Susan Smith, Esq. dated 3-29-99).
The defendant denies that she ever rejected any settlement proposal from her husband out of hand or rejected the opportunity to conduct a four-way conference with her husband and his lawyer. The Court finds her testimony on this subject to be credible, and on that basis concludes that the two decisions communicated in Mr. Somers' March 29 letter — to reject the husband's settlement proposal without discussing it and not to schedule a four-way conference — were, at least initially, his alone.
Indeed, barely one week later, on April 5, 1999, Mr. Somers responded to an intervening letter from Attorney Smith, in which she had objected to his unanticipated refusal to meet, by declaring that, although his client was "willing to negotiate in good faith," her husband's "proposals are unreasonable and do not engender discussions." Plaintiff's Exhibit #7 (Letter from David M. Somers to Susan Smith, Esq. dated 4-5-99). This letter ended with the following prophetic and revealing paragraph:
Unfortunately, this is going to be a long, difficult and highly contested divorce based on the unreasonable proposals that you presented on behalf of Mr. Busch. I respectfully suggest that he reconsider the harshness of his position and the impact on Mrs. Busch and the minor children. I will be on trial the week of April 20, 1999.
Id. The trial referenced in the final sentence of that paragraph was Mr. Somers' disbarment trial.
The Court finds that Mr. Somers' adoption, in the above-specified time frame, of a dismissive approach to opposing counsel's settlement proposals and resistance to her request for an immediate four-way conference to discuss them resulted from two forces then at play in his professional life. The first was his own generally confrontational style and combative approach to advocacy, which he exhibited in the above-described letters, in his conversations with opposing counsel, and even in his testimony before this Court. The second was his immediate short-term personal need, in the early spring of 1999, to focus his energies and attention on his impending disbarment proceeding. Instead of wishing to spend extra time on the defendant's dissolution action in that time frame — to promote a final settlement, "churn the file" and generate extra fees, or otherwise — the Court finds that he then needed to avoid time-consuming commitments in other cases so as to have enough time and energy to attend to his own defense.
Finally, the defendant complains that she never asked or authorized Mr. Somers to seek a family relations study as to the suitability of her husband's residence for the purposes of sharing joint custody of their three minor children. To the contrary she insists that she and her husband, whom she had always regarded as a good father, had always agreed to a joint custody arrangement, with physical custody in her. Mr. Somers denies that he acted unnecessarily in this regard, contending that such a study was required by a suggestion advanced by Attorney Smith in one of her later settlement proposals. The Court is of the view that by moving for a study rather than meeting to talk about its implications, Mr. Somers was attempting, once again, to play hardball with his client's husband and her lawyer, making them pay as a process matter for what he regarded as unreasonable settlement suggestions, rather than meeting to discuss all relevant issues around a conference table.
In the end, such confrontational tactics merely provoked great tension and mutual hostility between the parties by the time of his disbarment but led to no discernible progress in the ultimate resolution of the case. It was only after getting new counsel and reflecting upon the course of her representation to that time, that the defendant and her husband were able to sit down with one another and their counsel to work out the details of their dissolution agreement. The plaintiff's new counsel completed all work necessary for that purpose for less than $2,500.00.
CONCLUSIONS OF LAW: I. The Plaintiff's Principal Claim of Breach of Contract
To prevail in an action for breach of contract to recover unpaid fees for professional services, a lawyer or other professional service provider must prove by a fair preponderance of the evidence that he actually rendered the services he contracted to perform, the rate of compensation agreed to for such services, and the time required to perform them. Day v. Len-Metal-Fab, Inc., 3 Conn. Cir.Ct. 249, 212 A.2d 426 (1965). Where the contract provides an hourly rate for the performance of such services but does not state an agreed-upon time for their rendition in full, "there is an implied promise on the part of the [professional] that he will devote such time [to] the performance of the services as is reasonably commensurate with the duties entrusted to him. See Slade v. Harris, 105 Conn. 436, 441, 135 A. 570 [(1927)]. What would be a reasonable time is a question of fact, depending upon the circumstances in a given situation[.] Freda v. Smith, 142 Conn. 126, 134, 111 A.2d 679 [(1955)]; see Rochester Distilling Co. v. Geloso, 92 Conn. 43, 45, 101 A. 500.[()]" Day v. Len-Metal-Fab, Inc., supra, 3 Conn. Cir.Ct. at 253.
To determine if a lawyer or other professional services provider has actually rendered the services he agreed to perform under a contract, and if so, how much time was reasonable for the performance of such services, a court must obviously begin by determining exactly what services were called for under the parties' contract. Unless, to reiterate, such services were rendered as agreed to, there can be no recovery of unpaid fees as damages for breach of contract.
When a professional agrees to perform particular services for a client on a continuing basis over a period of time — as, for example, when a lawyer agrees to serve as general counsel for a business or as town counsel for a municipality — it is appropriate to view the contractual engagement between them as one with no overarching goal or objective other than to ensure that the lawyer's services are available to the client whenever the client needs them in the relevant time period. Under such an engagement, each hour reasonably devoted to the services agreed to for the client is, in effect, a severable, separately billable event. That is, each such hour of service can appropriately be billed to the client as it is worked, without reference to or consideration of its contribution to the completion of any ultimate task or the accomplishment of any overall objective of the contractual engagement.
Where, by contrast, the professional is engaged to perform a single, indivisible task on behalf of the client, such as representing him in a particular lawsuit, preparing and executing a particular document or instrument for his use or consummating a particular business transaction on his behalf, his right to collect a fee for performing work on that contract ultimately depends upon whether or not he has completed the single, indivisible task agreed to therein. Weinstein v. Mutual Trust Life Ins. Co., 116 Conn. 654, 166 A. 63 (1933). If he has, then the time for which he may appropriately bill and recover fees under the contract will be limited to that which is "reasonably commensurate with the duties entrusted to him" for the completion of that task. If, however, he has not performed that entire task as agreed to, then he has no right to recover unpaid fees from the client as damages for breach of contract. Id. ('This is but the application of the general principle of contract law that where the parties enter into an indivisible undertaking and one party performs less than the whole for which he is obligated, he cannot insist upon performance by the other, but at most can claim only compensation for the benefit conferred on that other.")
Implicit in the threshold requirement of proof in any action to recover fees due for services as damages for breach of contract — that the plaintiff actually rendered the services as agreed to in the contract — is the general rule no fee is due for a contracted-for service unless and until that service is performed as agreed to. O'Keefe v. Bassett, 132 Conn. 659, 663, 46 A.2d 827 (1946) ("The agreement of the plaintiff to render certain services and of the defendant to pay a commission upon the orders received were dependent conditions; . . . and the failure of the former to perform his obligations entitled the latter to regard the contract as discharged and to put an end to it"). On that score, the general rule and its only exceptions have been stated as follows: "A party cannot recover on a contract unless he has fully performed his obligations under it, has rendered performance, or has some legal excuse for not performing." Ravitch v. Stollman Poultry Farms, Inc., 165 Conn. 135, 149, 328 A.2d 711 (1973) (citing Automobile Ins. Co. v. Model Family Laundries, Inc., 133 Conn. 433, 437, 52 A.2d 137 (1947); Pratt v. Dunlop, 85 Conn. 180, 183, 82 A. 195 (1912); 17 Am.Jur.2d, Contracts, § 361).
Legal excuses for not performing contract obligations as agreed cannot be based upon the occurrence of an event or the existence of a condition or a circumstance for which the party's claiming excuse is himself responsible, either because his conduct gave rise to it or because the risk of its occurrence or existence is allocated to him, by the contract or by custom. On the other hand, non-performance resulting from the other party's prevention of performance is a valid legal excuse for non-performance; see, e.g., Morehouse v. Bradley, 80 Conn. 611, 69 A. 947 (1908); as is inability to perform or complete the contract due to an unexpected occurrence, condition or circumstance, the risk of which is not allocated to either party by the contract or by custom, which makes its performance or completion impossible or commercially impracticable. Roy v. Stephen Pontiac-Cadillac, Inc., 15 Conn.App. 101, 104, 543 A.2d 775 (1988). Where a party who has neither performed his contractual obligations nor tendered performance under the contract has no valid legal excuse for not performing the contract as agreed to, he is not entitled to recover unpaid fees as damages in an action for breach of contract. Phillips v. Sturm, 91 Conn. 331, 99 A. 689 (1917).
In this case, there is no question that the defendant engaged the plaintiff to enter into a contract to perform a single, indivisible task, to wit: to represent her, from start to finish, in an action to obtain the dissolution of her marriage. Hence, although she admittedly agreed to make payments to the plaintiff for costs it incurred and hours worked by its staff as the action proceeded, the working of each such hour, unlike hours worked for a client under a general retainer agreement to perform recurring tasks or services on a continuing basis, did not constitute the completion of a severable, separately billable unit of work for which a separate breach of contract action to recover unpaid fees might be maintained. Instead, it represented an inseparable part of an overall effort to complete the single, indivisible task for which defendant had engaged the plaintiff — processing her dissolution action to completion. The plaintiff manifestly did not complete that task by the time it stopped representing her due to the disbarment of Mr. Somers.
The evidence here presented also makes it clear that the plaintiff never tendered performance under the contract, for with its only lawyer disbarred, it obviously could not represent her at all in her dissolution action, much less process it to conclusion. Indeed, the evidence shows that after Mr. Somers' disbarment, the plaintiff was not only unable to represent her in that action with its own forces, but it was unwilling and/or unable to help her to find another lawyer for that purpose. Instead of advising her of the disbarment, it gracelessly and unceremoniously let the defendant learn of it from a friend, who had read a story about it in the local newspaper. Then, when she inevitably called the plaintiff's office to confirm what she had been told and to ask how she should proceed from then on, all Mr. Somers told her was that a new lawyer would be appointed to represent her but — and he said it more than once — she must keep paying the plaintiff's bills.
Finally, although the disbarment of Mr. Somers surely made it impossible for him or the plaintiff to carry on with their representation of the defendant in her dissolution action, the disbarment just as surely did not constitute a valid legal excuse for the plaintiff's non-performance that would somehow justify this action by it to recover its unpaid fees and other damages for breach of contract. Impossibility, to reiterate, is not an excuse for non-performance when the occurrence or condition that gave rise to it is one for which the party seeking fees is itself at fault. Here, of course, the disbarment of Mr. Somers is obviously an occurrence for which the plaintiff was at fault, both because of Mr. Somers' underlying conduct, which he engaged in while acting as the plaintiff's agent and employee, and by failing, through Mr. Somers or otherwise, to inform the defendant of the pendency of the disbarment proceedings at any time after they were commenced. Had she been so advised, she could have considered making alternative plans for her representation in the dissolution action, either immediately, before the disbarment proceedings were over, or thereafter, if Mr. Somers were ultimately disbarred. Here, however, acting completely without notice, she was never given that opportunity.
For all of the foregoing reasons, the Court concludes that the plaintiff has failed to establish the first essential element of its claim of breach of contract because it has not proved that it performed the single, indivisible task it had agreed to perform under the parties' contract, that it tendered performance under that contract, or that it had any valid legal excuse for its failure to perform. Accordingly, all of the plaintiff's claims for damages under the contract — including its claim for unpaid fees at contractually agreed-upon rates, its claim for 12% contractual interest on those fees, and its contractual claim for attorneys fees and costs of collection in this action — must be rejected. Judgment hereby enters for the defendant on the plaintiff's claim of breach of express contract.
II. The Plaintiff's Fallback Claim for Restitutionary Relief
Although, from the outset, the plaintiff presented its one and only claim in this action as a claim for breach of an express contract, it has asked this Court, in its Supplemental Brief dated November 28, 2005, to find nested in that claim a fallback claim for restitutionary relief. In particular, it now argues that, if its principal claim of breach of express contract is rejected, it should nonetheless be awarded the reasonable value of the services it rendered to the defendant in her dissolution action under the equitable doctrine of quantum meruit. In McKnight v. Gizze, 119 Conn. 251, 255, 175 A. 676 (1934), claims the plaintiff, our Supreme Court ruled that an attorney who performs services under a contract held to be unenforceable for reasons that have nothing to do with dishonesty or disloyalty to the client is entitled to recover the reasonable value of his services under the doctrine of quantum meruit. That doctrine, it claims, ensures that any lawyer who has faithfully performed professional services for a client be paid a reasonable sum for those services so that his client, who would otherwise receive and benefit from those services without paying for them, will not be unjustly enriched at his expense. See Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001).
This Court has no trouble agreeing with the plaintiff that the allegations of its Complaint are broad enough to state an alternative claim for restitutionary relief in addition to its principal claim of breach of contract. This is so for two related reasons. First, the plaintiff has clearly alleged that it was retained by the defendant to represent her in connection with her dissolution action, that it expected to be paid for the legal services rendered to her in that action, and that she has refused its demands for payment of fees allegedly due and owing for the performance of those services. Secondly, in the ad damnum of its Complaint, the plaintiff did not restrict itself to a claim at law for contract damages, but expressly sought, in equity, to recover "[s]uch other and further relief as may be required." The trend in our case law is well established that, when such claims and allegations appear in a complaint for breach of contract, the complaint is broad enough to state a related claim for equitable relief which the Court can duly consider in addition to or in lieu of its claim of breach of contract. See, e.g., Burns v. Koellmer, 11 Conn.App. 375, 383, 527 A.2d 1210 (1987) (finding that the allegations of a complaint seeking damages for breach of contract were broad enough to state parallel claims in equity for quantum meruit and unjust enrichment).
Notwithstanding the appropriateness of considering the plaintiff's fallback claim for restitutionary relief under a liberal construction of its Complaint, the Court does not believe that the plaintiff has established any basis on this record for recovering the reasonable value of its services under the doctrine of quantum meruit. There are two principal reasons for this conclusion. First, a recovery in quantum meruit is unavailable as a matter of law when the parties' relations are governed by an express contract. Collins v. Lewis, 111 Conn. 299, 304, 149 A. 668 (1930). Here, in fact, all of the work for which the plaintiff now seeks a recovery in quantum meruit was in fact performed under a valid express contract — one that was never declared null and void for any reason or otherwise set aside. The reason why the plaintiff cannot recover damages under that contract in this case is simply, as aforesaid, that it has not proved the first essential element of breach of contract, to wit: that it rendered the services called for under that contract as agreed to, or tendered performance of those services to the defendant, or has a valid legal excuse for failing to perform its contractual obligations. Second, the law of this State is now clear that when a party has failed to perform his contractual obligations, or to tender performance under the contract, for reasons which would not excuse a breach, his only right in equity to recover restitution for services rendered but not paid for before the breach is based upon the more stringent law of and standards governing recoveries for unjust enrichment, not the more generous law of and standards governing recoveries in quantum meruit.
In Kelley v. Hance, 108 Conn. 186, 188-90, 142 A. 683 (1928), our Supreme Court described as follows the limited circumstances in which a contracting party who fails to substantially perform his contractual obligations, without tendering performance or advancing a valid legal excuse for not performing, may nonetheless recover damages for the partial performance of those obligations:
Though a contractor has failed of performance for reasons which would not excuse a breach, and where there has not been even substantial performance, the breach being merely negligent. many of the more recent decisions have held that he could recover the value of his work less the damages caused by his default. 3 Williston on Contracts, § 1475, and cases cited. Such recovery is allowed, not upon the original contract, for that has been breached, but in quasi-contract upon the theory that if such recovery were not allowed the other party would be unjustly enriched at the expense of the contractor. 6 Page on Contracts, § 3262. Some cases have gone so far as to allow an employee who has performed part of his employment to recover reasonable compensation though his failure to render further performance was due to his wilful abandonment of his contract. 3 Williston on Contracts, § 1477. By the weight of authority, however, there can ordinarily be no recovery where the contractor has wilfully abandoned his contract without justification. Pinches v. Swedish Evangelical Lutheran Church, supra; Daly Sons v. New Haven Hotel Co., supra; Fagerholm v. Nielson, 93 Conn. 380, 386, 106 A. 333; Pollak v. Danbury Mfg. Co., 103 Conn. 553, 557, 131 A. 261; 3 Williston on Contracts, § 1475; 6 Page on Contracts, § 3265; L.R.A1916E, 800; Keener on Quasi-Contracts, 215.
While the mere fact that part performance has been beneficial to the defendant will not entitle the plaintiff to recover where he has abandoned performance without justification, the defendant may nevertheless make himself liable by his voluntary acceptance of the benefits under circumstances sufficient to raise an implied promise to pay for them notwithstanding the nonperformance of the contract. Where one retains goods received in part performance of a contract, a promise to pay for them is ordinarily implied, since he has the option either to pay for or return them. Where, however, work has been done upon one's land, the benefit cannot well be returned and an acceptance of the benefit cannot be implied from the mere retention of possession of the land. In such cases therefore the better rule would seem to be that, except where there has been an actual acceptance of the work prior to its abandonment by the plaintiff, mere inaction on the part of the defendant will not be treated as an acceptance of the work from which a promise to pay for it may be implied. Sumpter v. Hedges, L.R. (1898) 1 Q.B. 673; Elliott v. Caldwell, 43 Minn. 357, 45 N.W. 845, 9 L.R.A. 52; 6 Page on Contracts, § 3269; 9 Corpus Juris, 819.
CT Page 6819
We have held that recovery can be had for partial performance which has been beneficial only when the benefit has been appropriated by the defendant under circumstances sufficient to raise an implied promise to pay for the reasonable value of what has been received. Jones v. Marlborough, 70 Conn. 583, 589, 40 A. 460; Jones Hotchkiss Co. v. Davenport, 74 Conn. 418, 490, 50 A. 1028.
(Emphasis added.) Although this rule clearly provided that no contracting party would be obliged to pay for a partial performance under the parties' original contract, would have been breached, it nonetheless suggested that, although its essentially equitable purpose was to prevent unjust enrichment of the contractee, it would only be enforced when the benefits flowing to him from the contractor's partial performance were retained under circumstances supporting the existence of a new, implied contract to pay for those benefits. This, of course, raised the question whether the correct measure of damages payable for the partial performance of a contractual obligation under a breached contract should be the reasonable value of the contractor's services, as it would be under either an implied contract for services or the doctrine of quantum meruit, or instead the value of the benefit of those services to the contractee who would otherwise receive and benefit from them without paying.
The foregoing question was not definitively answered until many years later, when the Supreme Court finally raised and resolved it in Automobile Insurance Co. v. Model Family Laundries, Inc., 133 Conn. 433, 438-40, 52 A.2d 137 (1947). In that case, a party seeking compensation for the partial performance of a bailment contract was an assignee whose assignor, the bailee under that contract, had breached the contract when certain bailed garments stored by it had been destroyed by fire, and thus could never be returned. There, the Supreme Court discussed as follows the bailee's right to compensation for its partial performance of the contract before the fire:
The question before us, then, is this: Where a bailee accepts goods for storage, agreeing to insure them against loss or damage by fire, does so insure them and after they are lost or damaged by fire, the insurer pays the owner an amount representing their value or depreciation in value, can the bailee, having broken his contract to return them, recover for his services? One cannot recover upon a contract unless he has fully performed his own obligation under it, has tendered performance, or has some legal excuse for not performing. Pratt v. Dunlap, 85 Conn. 180, 183, 82 A. 195; Lunde v. Minch, 105 Conn. 657, 659, 136 A. 552. Where, however, after partial performance of a contract by the promisor, the destruction of the subject matter without fault on the part of the promisor renders full performance impossible, he may recover for so much of his undertaking as he has performed, at least if the promisee has been benefitted thereby. Goldfarb v. Cohen, 92 Conn. 277, 284, 102 A. 649; Leahy v. Cheney, 90 Conn. 611, 615, 98 A. 132; 6 Williston, Contracts (Rev. Ed.) 1975; Restatement, 2 Contracts 468.
There is a conflict in the authorities as to the basis upon which, under this principle, compensation should be made. Under one theory, the promisor would be permitted to recover a pro rata amount of the contract price. 5 Page, Contracts (2d Ed.) 2720. As Page points out, the effect of this rule is to treat a contract which has been discharged by impossibility of performance as still in force. In Leahy v. Cheney, supra, we said that recovery by a promisor in such a case, would be "not by an action upon the contract, but upon a quantum meruit for services performed." We have been confronted with a somewhat similar question with reference to the doctrine under which, at least in building contracts, a contractor is permitted under certain circumstances to recover where he has substantially but not fully performed. In Fagerholm v. Nielson, 93 Conn. 380, 386, 106 A. 333, we stated that an action by the contractor in such a situation was one on the contract; in Kearns v. Andree, 107 Conn. 181, 186, 139 A. 695, we treated such a case as falling within the category of those where recovery might be had on an implied contract, with recovery based upon reasonable compensation to the contractor for the services performed and materials furnished; but in Kelley v. Hance, 108 Conn. 186, 188, 142 A. 683, we definitely placed the doctrine upon the following ground: "Such recovery is allowed, not upon the original contract, for that has been breached, but in quasi-contract upon the theory that if such recovery were not allowed the other party would be unjustly enriched at the expense of the contractor." Where, after services have been performed, full performance of an agreement becomes impossible, recovery by the promisor must be upon some other basis than the obligation of the promisee in the contract.
Aside from an action on the contract, recovery has generally been based on one or the other of two grounds. One regards the right of the promisor as resting upon an implied contract under which he would be entitled to recover reasonable compensation for the services he has rendered; and the other permits a recovery in the nature of restitution for the benefits resulting from the part performance. 5 Page, op. cit., 2717-719. Williston strongly supports the former rule; 6 Williston, op. cit., 1977; but as the promisee has contracted for full performance for an agreed consideration to be given by him it is difficult to see how the law can imply an intent on his part to pay a reasonable compensation for partial performance." A true implied contract can only exist where there is no express one. It is one which is inferred from the conduct of the parties though not expressed in words." Collins v. Lewis, 111 Conn. 299, 304, 149 A. 668. In many, perhaps most, situations, either rule would bring about substantially the same result, for the compensation made to the promisor would usually be a fair measure of the benefit received by the promisee; but under either, under the particular circumstances involved, injustice may result to one or the other of the parties . . . The Restatement adopts the principle of restitution: it states that the basis of recovery is the "value of the part performance," meaning thereby "the benefit derived from the performance in advancing the object of the contract not exceeding, however, the ratable portion of the contract price." Restatement, 2 Contracts 468, and illustration 6: Restitution 108(c). This we regard as the sounder principle applicable in such a case, and we adopt it.
(Emphasis added.)
Applying the foregoing rule to the case before it, the Supreme Court ruled that the bailee could not recover anything for the time and expense it had devoted to storing the bailed goods before they were destroyed, for nothing it expended for that purpose, regardless of its "reasonable value," could be found to have benefited the bailor by advancing the object of the contract — to return the goods intact — which their destruction had made impossible. Id. at 440. On the other hand, it observed, in contemplation of retrial, that restitution could be awarded for the cost of insuring the bailed goods during the bailment period, for that expense did advance a separate object of the bailment contract, which was to ensure that the bailor would be compensated for its bailed property in the event of its loss or injury by fire. Id. at 441 ("The plaintiff . . . is entitled to recover the reasonable value of that service, which would presumably be the amount the corporation paid for the insurance it procured upon the [goods] deposited with it by the defendant").
The rule of Kelley v. Hance, explicated as aforesaid in Automobile Insurance Co. v. Model Family Industries, Inc., applies to this day to all claims for partial performance of contractual obligations by parties in breach, whether the breach results from negligence and resulting impossibility of performance or from voluntary abandonment by the party seeking damages for partial performance. Now codified in the Restatement Second of Contracts § 374, this rule affords the equitable remedy of unjust enrichment, but not of quantum meruit, to any party in breach of a contract who seeks restitution for the partial performance of his obligations under that contract. Where such a remedy is sought, the measure of the claimant's recovery is not the reasonable value for the services he provided in the relevant labor market, but instead, the benefit derived by the contractee from the performance of such services in advancing the objects of the contract. In this regard, comment b to the Restatement Second of Contracts § 374, entitled "Measurement of benefit," provides in relevant part as follows:
Since the party seeking restitution is responsible for posing the problem of measurement of benefit, doubts will be resolved against him and his recovery will not exceed the . . . measure . . . of the other party's increase in wealth . . . If no value can be put on this, he cannot recover . . . Although the contract price is evidence of the benefit, it is not conclusive. However, in no case will the party in breach be allowed to recover more than a ratable portion of the total contract price where such a portion can be determined.
Accord, 3 D. Dobbs, Law of Remedies (2nd Ed. 1993) § 12.21(3), p. 489. ("Restitution for the employee in breach . . . should be measured by the actual benefit conferred upon the employer, not by the market value of the employee's labor.")
Here, the defendant claims that plaintiff should be entitled to no restitutionary remedy whatsoever because the reason for its non-performance of its contractual obligations in this case was the disbarment of Mr. Somers for what, by any measure, was serious misconduct. In this regard, the defendant correctly notes that in some States, the termination of a lawyer's representation of a client due to disbarment before a case is over has been held to constitute a voluntary abandonment of the lawyer's contractual obligations to the client, and thus a basis for forfeiting the lawyer's right to any compensation from that client. See, e.g., Fletcher v. Krise, 120 F.2d 809 (App.D.C. D.C. Cir. 1941), cert denied, 314 U.S. 608, 62 S.Ct. 88, 86 L.Ed. 489 (1941); Kimmie v. Terminal R. Ass'n of St. Louis, 344 Mo. 412, 126 S.W.2d 1197 (1939); Royden v. Ardoin, 160 Tex. 338, 331 S.W.2d 206 (1960); Egan v. Waggoner, 41 S.D. 239 170 N.W. 142 (1918). In several other States, however, disbarred lawyers are permitted to make restitutionary recoveries from their former clients in quantum meruit for the reasonable value of services rendered to them before they were disbarred. See, e.g., Harris Trust Sav. Bank v. Chicago College of Osteopathic Medicine, 116 Ill.App.3d 906, 72 Ill. Dec. 448, 452 N.E.2d 701 (1st Dist. 1983); Stein v. Shaw, 6 N.J. 525, 79 A.2d 310 (1951). In most such States, a lawyer's post-disbarment termination of a client's representation is not deemed to constitute a voluntary abandonment of the client's cause, and for that reason is not held not to furnish any basis for the forfeiture of fees earned prior to his disbarment.
Although this issue has not yet been decided in Connecticut, this Court is persuaded our Supreme and Appellate Courts will treat lawyers' mid-case terminations of contracts to represent their clients no differently than it has long treated other mid-contract terminations under the rule of Kelley v. Hance and CT Page 6824 Automobile Insurance Co. v. Model Family Industries, Inc., discussed above. In those cases, to reiterate, our Courts have not treated even the voluntary abandonment of contractual obligations by a party in breach as a basis for defeating an equitable claim by him for restitutionary relief. Forbidding any recovery at all by such a party is thought to go further than necessary to balance the competing equities between one who has abandoned or otherwise failed to meet his contractual obligations and one who would otherwise gain an unjust benefit from receiving but not paying for another's uncompensated work. Such a complete forfeiture would not logically be ordered except where the misconduct which led to the disbarment was directed at the party from whom the recovery is sought, for then there would be no injustice in that party's retention of the benefits of the partial performance without paying for them.
On the other hand, permitting a lawyer who terminates an indivisible contract for professional services with a client due to his own disbarment to seek restitution from the client for his partial performance of those services in quantum meruit would, perversely, place the disbarred lawyer in a better position than any other contracting party who, though failing fully to perform his contractual obligations for less culpable reasons, would still be limited to recovering for his partial performance solely on the basis, and under the less generous standards, of unjust enrichment. Unless the pre-disbarment work for which the lawyer seeks restitution was actually fully performed under a different contract, or under a logically and legally severable portion of the present, terminated contract, awarding him restitution for such work on the basis, and under the standards, of quantum meruit, not unjust enrichment, would be contrary to Connecticut precedent and unjust. If, then, a Connecticut lawyer fails to fully perform services for a client, as agreed to, under a contract he has terminated because of his own disbarment, the measure of his recovery, if any, from his client for the partial performance of those services should be the benefit derived by the client from that partial in advancing the objects of the contract, not the reasonable value of such services in the relevant legal services market.
In considering the plaintiff's claim for equitable relief in this case, it is axiomatic that the measure of damages to be awarded are only those which, in equity, will prevent the unjust enrichment of the defendant. To make that assessment, the Court is not at all limited to the provisions of the original, breached contract to assess the value of the services for which recovery is sought, but may appropriately consider what part, if any, of those services have in fact benefitted the defendant and the extent to which they have done so in carrying out the purposes of the parties' original contract.
In this case, it is tempting to conclude that the plaintiff's work on behalf of the defendant before the disbarment of Mr. Somers conferred absolutely no benefit upon her in carrying out the purposes of the parties' contract. The single, indivisible task which was to be completed under the contract, to reiterate, was the processing to completion of the defendant's action for the dissolution of her marriage. From this record, however, it appears that despite the plaintiff's mounting billings for its services in the year it represented the defendant in that action, it made almost no progress towards obtaining a final dissolution, and thus conferred virtually no benefit upon her in carrying out the purposes of her contract with the plaintiff.
Indeed, measured by that purpose, it actually appears that the parties were further from accomplishing it by the time of Mr. Somers' disbarment than they had been when the defendant first entered his office for what she had reasonably expected to be a free consultation. The two central issues that were open between the defendant and her husband at the time of that initial consultation — how much money should ultimately be awarded to her for alimony and child support — were still completely unresolved, and other issues needlessly injected into the case by Mr. Somers, assertedly to gain leverage in his dealings with the defendant's husband and his lawyer, not only loomed on the horizon but had fostered great tension and hostility between them, which hardly promoted her stated goal of achieving an amicable settlement. These extra issues included: the suitability of the husband's home for a joint custody arrangement, which Mr. Somers had raised, without his client's approval, by seeking a court study; and the division of the marital assets, which, although the parties had previously agreed it should be 50-50, Mr. Somers proposed, also without his client's approval, be 60-40 in her favor due to the husband's extramarital affair which had precipitated the breakup of the marriage. None of these issues was ever made the subject of a four-way conference among the lawyers and their clients because Mr. Somers, who was very busy with his own disbarment proceeding,stubbornly refused to schedule one, supposedly at his client's insistence. In fact, the defendant had never refused to participate in a four-way conference to discuss these issues, and had never set any mandatory pre-conditions to convening such a conference, as Mr. Somers had told her husband's lawyer. With the defendant's dissolution action in this sorry state of affairs at the time of Mr. Somers' disbarment, no progress having been made towards its ultimate resolution while the plaintiff represented her, the defendant cannot be found to have had any benefit at all conferred upon her by such representation, much less one whose retention by her without paying for it would constitute unjust enrichment.
According to Judge Langenbach's Memorandum of Decision in that proceeding, which was entered into evidence as Court Exhibit #2, the Court heard testimony in that proceeding on seven days between April 20 and May 6, 1999. Closing arguments were presented on July 28, 1999.
It is true, of course, that when, in the wake of Mr. Somers' disbarment, the defendant's present lawyer replaced the plaintiff as her counsel in the dissolution action, certain work previously performed by the plaintiff, through Mr. Somers and his staff, enabled new counsel to proceed more expeditiously with that action than might otherwise have been possible. The work in question was as follows:
(1) preparation, service upon the defendant's husband and filing, on or about September 18, 1998, of the defendant's original writ, summons, and complaint in the dissolution action, affidavits of custody concerning the defendant's three minor children, and notice of lis pendens on the marital home; [billed by the plaintiff for $715.00, representing $360.00 for 1.5 hours of attorney labor plus $355.00 in total fees for filing and service by the sheriff];
(2) preparation and filing, on or about October 12, 1998, of the defendant's answer to her husband's cross complaint in the dissolution action; [not separately billed];
(3) drafting and service upon the defendant's husband, on or about October 19, 1998, of non-standard interrogatories to be answered by the husband concerning the current state of his income and assets; [billed by the plaintiff for $ 480.00, representing 2 hours of attorney labor];
(4) preparation and filing, on or about December 16, 1998 and January 13, 1999, of the defendant's financial affidavits in connection with her husband's motion for determination of alimony and support dated November 30, 1998; [billed by the plaintiff for $132.00, representing $96.00 for 0.4 hours of attorney labor and $36.00 for 0.4 hours of legal assistant labor];
(5) preparation for and attendance at a hearing before Judge Bishop, on January 13, 1999, on the defendant's husband's motion for determination of alimony and support dated November 30, 1998; [billed by the plaintiff for $1,392.00, representing 5.8 hours of attorney labor];
(6) preparation and faxing to court and opposing counsel of Case Management Agreement on January 18, 1999; [billed by the plaintiff for $120.00, representing 0.5 hours of attorney labor]; and
(7) preparation and service, on Match 15 and March 16, 1999, of defendant's discovery response; [billed by the plaintiff at $786.00, representing $624.00 for 2.6 hours of attorney labor and $162.00 for 1.8 hours of legal assistant labor].
Because this work, all performed by the plaintiff before Mr. Somers' disbarment, conferred benefits upon the defendant which in some way promoted the purposes of the contract between them — by commencing her dissolution action, closing the pleadings in and further processing that action, and protecting her financial interests, at least temporarily, in the course thereof — it would be inequitable for her to retain the value of those benefits without paying for them, if that in fact has happened. Apart from such work, however, the plaintiff's other work for the defendant in her dissolution action conferred no benefit upon her, either permanent or temporary, much less one whose retention by her could result in her unjust enrichment.
For example, the draft separation agreements which Mr. Somers drafted and revised never became the basis for or facilitated the drafting of the parties' final settlement of the dissolution action. Similarly, work devoted to obtaining attorneys fees from the defendant's husband pendente lite and to contesting, also unsuccessfully, the defendant's husband's later effort to reduce the amount of his unallocated alimony and child support payment to his wife to its original level conferred no benefit upon her.
The value of the above-described work, by which the plaintiff conferred benefits upon the defendant which promoted the purposes of their Agreement, was at most $3,625.00. That is the aggregate amount which the plaintiff itself billed for such work, and thus the most the defendant would have had to pay for its resulting benefits. Assuming that that is also the maximum possible value of those benefits to the defendant, that aggregate amount, less any payments the defendant has already made to the plaintiff under the contract, is the full measure of the defendant's unjust enrichment, if any, at the plaintiff's expense.
Here, of course, the defendant has already paid the plaintiff $4,730.00 for services rendered to her under the contract. Because that amount far exceeds the maximum value of any benefits conferred upon her by the plaintiff's partial performance of its contractual obligations, the defendant has not been enriched by that partial performance, unjustly or otherwise, at the plaintiff's expense. For that reason, judgment must enter for the defendant on the plaintiff's fallback claim for restitutionary relief as the Court has found it pleaded in this action.
III. The Defendant's Counterclaim Under CUTPA
The defendant, in her Counterclaim, has alleged that: at the time of signing the Retainer Agreement, or at some time subsequent thereto, the plaintiff learned that there was a pending action for the disbarment of her attorney, David Somers, but failed to advise her thereof; Answer, Special Defense and Counterclaim (3/10/03): Counterclaim, ¶¶ 1-2; said failure to notify the defendant of the pendency of an action for the disbarment of Mr. Somers was a material misrepresentation and/or omission designed to induce the defendant to execute the Retainer Agreement and/or to keep the plaintiff as her counsel in her dissolution action; id., ¶ 3; the plaintiff, so retained, filed frivolous motions and billed excessive hours in order to maximize his billing in the dissolution action without regard to the defendant's interests or financial condition; id., ¶ 4; and said misrepresentations and/or omissions and actions were unfair and deceptive, and thus in violation of CUTPA. Id., p. 5. As relief on her Counterclaim, the defendant seeks compensatory damages, costs and reasonable attorneys fees, and punitive damages.
The plaintiff, as counterclaim defendant, has answered the defendant's Counterclaim by admitting that either at the time it signed the Retainer Agreement to represent the defendant in her dissolution action, or at some time after the execution of that Agreement, it learned that there was a pending action for the disbarment of Mr. Somers. Answer to Counterclaim (3/17/03), ¶¶ 1, 3. It has denied, however, all other allegations of wrongdoing against it. Id., ¶ 2.
At the outset it must be noted that a claim against an attorney for unfair or deceptive practices in the conduct of trade or commerce is not cognizable under CUTPA unless it is based solely upon the entrepreneurial aspects of his business activities. Beverly Hills Concepts, Inc. v. Schatz and Schatz, Ribicoff and Kotkin, 247 Conn. 48, 79, 717 A.2d 724 (1998). Allegations of professional negligence, conflict of interest or other misconduct in the rendering of professional legal services, which are traditionally raisable only on claims of legal malpractice, must still be raised only on such claims so that they will consistently be judged under the special rules and procedures applicable to such claims, and only under proper professional standards, not under the quite different rules of fair dealing that govern the non-professional marketplace. Id.
Looking at the instant allegations, the Court is struck at once by the degree to which they are based, at their very core, upon alleged deviations from rules and standards which govern the rendering of professional legal services rather than the purely entrepreneurial aspects of the practice of law. To the extent that they are based upon the former, they fail, as aforesaid, to state a claim upon which relief can be granted under CUTPA. To the extent that they are based upon the latter, which is minimal indeed, they have not been proved to the satisfaction of this Court. Accordingly, the Court concludes, for the reasons set forth below, that judgment must enter for the plaintiff on the defendant's Counterclaim.
The first essential allegation of the Counterclaim, which the plaintiff has admitted, is that at some point before or after the commencement of the defendant's dissolution action, it became aware that its employee, Mr. Somers, faced possible disbarment in a proceeding then pending before this Court. Having become so aware, the plaintiff allegedly failed to inform the defendant of that proceeding, and thus allegedly made a material misrepresentation and/or omission designed to induce the defendant to sign the Retainer Agreement or to remain its client in the dissolution action. Standing alone, these allegations plainly imply that when the plaintiff learned of the pendency of Mr. Somers' disbarment proceeding, it owed the defendant a legal duty to advise her of that proceeding, and, perhaps as well, to warn her of the potential consequences thereof.
Failure to disclose can be deceptive, for purposes of establishing a CUTPA violation, only if, in light of all the surrounding circumstances, there is a duty to disclose. Kenney v. Healey Ford-Lincoln-Mercury, Inc., 53 Conn.App. 327, 333, CT Page 6830 730 A.2d 115 (1999). The threshold question raised by the allegations in this case is therefore where, if at all, does such a duty arise? If, as the Counterclaim suggests, it arises from the parties' existing or impending attorney-client relationship and the fiduciary duties associated therewith, then the plaintiff's claimed breach of that duty, even if duly proven, would be a classic instance of legal malpractice, which cannot, as aforesaid, be relied upon as the basis for a CUTPA claim. Here, in fact, that is the case, for no other potential source of duty has been identified.
Even, moreover, if the context of the parties' dealings could appropriately be ignored, on the theory that the plaintiff conducted its dealings with the defendant solely for its own entrepreneurial purposes, it is generally true that a party to a business transaction cannot be found to have violated any legal duty in connection with that transaction simply because he does not volunteer information to another party to the transaction. Kenney v. Healey Ford-Lincoln-Mercury, Inc., supra, 53 Conn.App. 327, 332 (1999); Egan v. Hudson Nut Products, 142 Conn. 344, 345 (1955); Bridge-Mile Shoe Corporation v. Liggett Drug Company, 142 Conn. 313, 318 (1955); Fayne v. Smith, 104 Conn. 650 (1926). However, if a party undertakes to speak about a matter connected with a business transaction, he has a duty to make a full and fair disclosure of all facts that he knows that are connected with that matter. Once he has made such a disclosure of material facts, the party has the further duty to correct any material representation in such disclosure if and when he learns of other facts which do or should disclose to him that his prior representations, upon which the other party still relies, either never were or are no longer true. In this case, there is no allegation or proof that the plaintiff ever made any representation of material fact in the context of his business dealings with the defendant which he then knew or should have known to be untrue. What the defendant claims instead is that, having entered into the Retainer Agreement with her based upon the implied promise that it would continue to represent her in her dissolution until it was completed, it later made and continued to make a material misrepresentation as to the continuing viability of that essential promise by failing to disclose material facts concerning Mr. Somers' disbarment proceeding, which either did or should have disclosed to him that it was unlikely to be able to honor that promise. The plaintiff's initial promise, however — that it would represent the defendant in her dissolution action to completion — was just that, a contractual promise, not a representation of fact. Under our law, the duty to correct material misrepresentations extends only to facts, not to contractual promises, which are enforced by other law.
Furthermore, even if the law somehow did impose a duty upon the plaintiff to correct the impression left by the challenged promise by advising the defendant of new facts which disclosed or should have disclosed to it that that promise would not be honored, such a duty could not, by definition, have arisen until it actually learned of new facts that made or should have made that disclosure. Here, however, the Court has been given no evidentiary basis upon which to determine when, if ever, short of the issuance of Judge Langenbach's disbarment decision, Mr. Somers, and thus the plaintiff, either learned or should have learned that he would be disbarred, and thus that the plaintiff would be unable to complete the defendant's representation in her dissolution action. There is no question that the allegations against Mr. Somers were very serious and that the ultimate basis for his disbarment was a finding of repeated serious ethical misconduct. Still, during the entire course of his involvement in the dissolution action, he was presumed innocent of those charges entitled to believe, as he professed to have believed at trial, that he would eventually be fully exonerated. Hence, fully authorized by our State to practice law, despite his pending charges, right up until the day when Judge Langenbach issued his decision, he has not been proved to have known of facts which either disclosed or should have disclosed to him that he would be disbarred, or thus that the plaintiff would be unable to honor its contractual commitment to the defendant to complete her dissolution action.
Furthermore, the defendant has alleged and sought to prove that the essential purpose of the plaintiff's alleged misrepresentation and/or omission concerning its ability to complete her dissolution action was to induce the defendant to become or remain its client so that it could run up her bill by filing frivolous motions and billing her excessive fees. The Court has already found that little of the work done by the plaintiff for the defendant during the year it represented her produced any benefit for her in processing her dissolution action to completion. The measure of what little benefit those services produced for her was identified in the Court's discussion of the fallback claim for restitutionary relief in Part II of its Conclusions of Law, set forth above.
It is a far cry, however, from determining that a lawyer's conduct in the representation of a client conferred no significant benefit upon her in furthering the purposes of its representation of her and concluding that the lawyer's purpose for engaging in that conduct was simply to "churn the file." In most cases, including this one, any such evaluation or conclusion would have to be supported by credible expert testimony tending to establish that, in light of all the circumstances then existing, engaging in such conduct constituted legal malpractice, that is, a deviation from the prevailing professional standard of practice for one skilled and experienced in the relevant area of legal practice. No such testimony was presented in this case, and thus the Court is not prepared to find, and does not find, that the plaintiff represented the defendant as it did without professional justification and solely to generate excessive fees. The Court thus finds that the defendant has failed to establish any part of its CUTPA claim, both because that claim is inappropriately based upon allegations of legal malpractice and because, in any event, those allegations have not been proved by a fair preponderance of the evidence, as required by law. Judgment must therefore enter for the plaintiff on the defendant's Counterclaim under CUTPA.
CONCLUSION
For all of the foregoing reasons, the Court has concluded that judgment must enter for the defendant both on the plaintiff's principal claim of breach of express contract and on its fallback claim for restitutionary relief, as pleaded in its Complaint, but that judgment must enter for the plaintiff on the defendant's Counterclaim under CUTPA.
It is SO ORDERED.