Opinion
No. CV 02-0820681S
July 28, 2004
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR REARGUMENT OF FINAL JUDGMENT
On January 22, 2004, this Court rendered judgment for the plaintiff, the Francis T. Zappone Co. ("Zappone Co."), against the defendants, Plymouth Commons Realty Corp. ("Plymouth Commons"), Terryville Holding Corp. ("Terryville Holding") and Louis M. Ursini ("Mr. Ursini"), by issuing a written Memorandum of Decision deciding both this action ("the Zappone Co. Action") and a companion action, Capital Ventures, LLC v. Plymouth Commons Realty Corp., et al., No. CV 02-0816568-S ("the Capital Ventures Action"), with which it was consolidated and jointly tried. In its Memorandum of Decision, the Court first made extensive findings of fact as to the many overlapping issues arising in the two actions. Id. at pp. 2-39. Then it ruled as follows on the claims of law presented for its decision therein.
In the Zappone Co. Action, the Court first rendered judgment for Zappone Co. on its claims of breach of contract against Plymouth Commons and Terryville Holding for failure to pay commissions due and payable to it under exclusive listing agreements ("the Brokerage Agreements") for certain commercial properties owned by them in Plymouth and Terryville, Connecticut, respectively ("the Properties"), upon its procurement of Capital Ventures as a ready, willing and able buyer for the Properties during the term of the Brokerage Agreements. Memorandum of Decision, pp. 40-48. On these claims, as pleaded in the Second Count of its Complaint, the Court awarded Zappone Co. the sum of $458,468.75, including: an aggregate commission of $225,900, representing 6% of the total purchase price for the Properties, as agreed to by the defendants and Capital Ventures in their amended sales agreement of October 15, 2001 ("the amended CV Sales Agreement"); interest on the aggregate commission of $61,548.49, calculated at the contract rate of 12% per year from October 15, 2001 through January 12, 2004; and "reasonable attorneys fees" of $171,020.26 for legal fees and costs incurred to collect the commission from the date it was earned through July 17, 2003.
Second, the Court rendered judgment for Zappone Co. on its against Plymouth Commons and Terryville Holding, as pleaded in the First Count of its Complaint, that it was entitled under the Brokerage Agreements to recover one-half of Capital Ventures' $250,000 deposit, if and to the extent that Capital Ventures was held to have forfeited the deposit to the defendants upon the termination of the amended CV Sales Agreement. It ruled, however, that the plaintiff's one-half share of the Capital Ventures deposit if and to the extent that it was awarded to the defendants on their Counterclaim in the Capital Ventures Action, must be applied as a credit to the plaintiff's award of damages for breach of contract, on its Second Count, not added to that award as additional compensation for its work on the Capital Ventures deal. Memorandum of Decision, pp. 48-50.
Third, the Court entered judgment for Plymouth Commons and Terryville Holding on Zappone Co.'s claims of breach of contract and breach of the implied covenant of good faith and fair dealing against them, based upon their alleged refusal to market the Properties to Zappone Co.'s client, Mr. James Levin ("Mr. Levin"), in the 24-month "tail period" following the expiration of the Brokerage Agreements. Memorandum of Decision, pp. 50-56. The basis for this ruling on Zappone Co.'s so-called "Levin claims" was the Court's conclusion that in the "tail period," the defendants owed no continuing contractual duty to Zappone Co. to market the Properties to any of its clients.
Fourth and finally, on Zappone Co.'s claim that all three defendants had violated the Connecticut Unfair Trade Practices Act ("CUTPA"), General Statutes § 42-110a et seq., by engaging in divers forms of unfair and deceptive trade practices in their commercial dealings with it from the very outset of their business relationship until the commencement of the Zappone Co. Action, the defendants were held liable to pay Zappone Co. nominal compensatory damages of $1,000, and Mr. Ursini was held personally liable to pay it an additional $40,000 in punitive damages. Memorandum of Decision, pp. 56-67. Though the Court specifically found that, on its CUTPA claim, Zappone Co. had "demonstrated an entitlement to . . . attorneys fees in addition to nominal damages[,]" it declined to make such an award because:
The Court has already awarded the plaintiff his attorneys fees under his contract claim, and [thus] has no reason [to] award additional damages for that purpose at this time.
Id., p. 66.
Turning next to the conflicting claims by and between Capital Ventures and the defendants in the Capital Ventures Action, the Court first rejected Capital Ventures' claim against Plymouth Commons and Terryville Holding that it was entitled to the return of its $250,000 deposit under the amended CV Sales Agreement, because the unexpected illness and disablement of its manager, Attorney Charles D. Gersten, had allegedly rendered impracticable the performance of its obligations under the Agreement. Memorandum of Decision, pp. 67-73. It also rejected Capital Ventures' alternative basis for claiming for the return of its $250,000 deposit, to wit: that the defendants had waived their right to retain the deposit as liquidated damages by allegedly making a binding election to pursue a claim for their actual money damages instead. On the latter claim, the Court found, inter alia, that, although the amended CV Sales Agreement gave the defendants a clear choice of remedies in the event of a default by Capital Ventures — empowering them either to retain the deposit as liquidated damages or to pursue a civil remedy, at law or in equity, for their actual damages — the defendants never definitively elected the latter remedy to the exclusion of the former, and thus never induced Capital Ventures, by any such an election, to materially change its position in this case or thereby suffer any resulting harm. Id., pp. 73-77.
Third, the Court disagreed on the facts with, and thus rendered judgment for the defendants on, Capital Ventures' claim against Plymouth Commons and Terryville Holding, as pleaded in its Second Count, that it was entitled to restitution from them for that portion of its $250,000 deposit which was greater than the actual damages they incurred as a result of Capital Ventures' default under the amended CV Sales Agreement. Memorandum of Decision, pp. 77-82. To the contrary, it found, as it had in the Zappone Co. Action, that the defendants' actual damages flowing from Capital Ventures' breach closely approximated the amount of its forfeited deposit, for it included the $225,900 commission they owed to Zappone Co. plus accumulated interest thereon.
Fourth, on Plymouth Commons' and Terryville Holding's one-count Counterclaim, in which they sought to retain Capital Ventures' $250,000 deposit as liquidated damages upon Capital Ventures' default on and their own resulting termination of the amended CV Sales Agreement, the Court held initially that Capital Ventures could not prevail on its special defense that, even if its deposit were otherwise subject to forfeiture, at least part of that deposit should be returned to it due to the defendants' alleged failure to mitigate their damages following the breach. Memorandum of Decision, pp. 82-83. The Court rejected this claim as a matter of law, concluding that stipulated amounts of liquidated damages are never subject to reduction for failure to mitigate. It therefore did not reach the factual merits of Capital Ventures' claim of failure to mitigate, which was based entirely upon the defendants' alleged refusal to market the Properties to Mr. Levin, on terms favorable to the defendants, after amended CV Sales Agreement was terminated and the Brokerage Agreements expired.
Fifth and finally, having rejected all of the legal and factual grounds upon which Capital Ventures sought to avoid the forfeiture of its deposit, the Court rendered judgment for the defendants, as counterclaim plaintiffs, on their Counterclaim, ruling that they were entitled to retain the deposit, albeit subject to Zappone Co.'s right to receive one-half of that deposit in partial satisfaction of its judgment for breach of contract in the Zappone Co. Action.
On February 25, 2004, the defendants moved this Court under Section 11-11 of the Connecticut Practice Book for reargument of the judgment herein. Although the Motion was initially not accepted for filing by the clerk's office in Hartford because, like the Court's own Memorandum of Decision, it bore the captions and docket numbers of both consolidated cases, this Court ruled the Motion timely, over the objection of the plaintiff, when it was first argued on April 7, 2004.
See Transcript (4-7-04), pp. 8-10.
The specific grounds upon which the defendants sought reargument were as follows: (1) that the Court's award of attorneys fees to Zappone Co. on its successful claims of breach of contract, based upon the defendants' failure to pay it commissions for procuring Capital Ventures as a ready, willing and able buyer for the Properties, must be reduced to include only those fees which it reasonably incurred for the collection of those unpaid commissions; (2) that the challenged award of attorneys fees should be further reduced by an amount equaling all such fees which the defendants previously paid to Zappone Co. as sanctions for discovery misconduct prior to trial; and (3) that the Court should set aside its judgment for Zappone Co. on its CUTPA claim because there is assertedly no basis in the record for its underlying determination that the plaintiff sustained an ascertainable loss of money as a result of the defendants' unfair and deceptive conduct in the final month before the Brokerage Agreements expired. Both parties filed multiple briefs on these issues and addressed the Court with oral argument on two occasions.
At the initial hearing on the Motion on April 7, 2004, the Court ruled on the record in open court on two of the three issues presented for its decision. First, it agreed with the defendants that they should receive full credit against any award of attorneys fees to the plaintiff for all such fees they paid the plaintiff before trial as Court-ordered sanctions for discovery misconduct. Transcript (4-7-04), pp. 52-54. Having awarded those fees not to punish the defendants, but to compensate the plaintiff for costs needlessly incurred by it to overcome the defendants' prolonged and frustrating resistance to the conduct of meaningful pretrial discovery, the Court concluded that there was no justification for awarding those fees a second time at trial. Second, the Court rejected the defendants' challenge to the evidentiary basis for its finding of a CUTPA violation. Transcript (4-7-04), pp. 61-64. The Court stands by those rulings, which are hereby incorporated by reference into this Memorandum of Decision.
The fees in question, totaling $24,113.00, were paid in full after the issuance of separate Monetary Sanctions Orders dated April 11, 2003 and May 2, 2003.
As for the defendants' first claim on the Motion, however, after hearing initial arguments by counsel, the Court invited counsel to make an additional submissions as follows: for the plaintiff, a supplemental affidavit from its counsel, identifying those portions of its attorneys fees, if any, which were incurred exclusively for the prosecution of its Levin and CUTPA claims; and for the defendants, a written response to the plaintiff's supplemental affidavit. Transcript (4-7-04), p. 55. Thereafter, upon the filing of counsel's supplemental submissions, as requested, the Court heard further oral argument on the defendants' first claim on this Motion on May 12, 2004. The purpose of this Memorandum of Decision is to decide that claim.
I. ELEMENTS OF DEFENDANTS' INITIAL CHALLENGE TO THE REASONABLENESS OF PLAINTIFF'S CLAIM FOR ATTORNEYS FEES ON ITS SUCCESSFUL BREACH-OF-CONTRACT CLAIMSIn support of their first claim on this Motion — that the Court's award of attorneys fees on the plaintiff's successful breach-of-contract claims should be reduced to include only those fees which the plaintiff reasonably incurred to collect its commissions on the Capital Ventures deal — the defendants make two basic arguments. First, they argue that the plaintiff has failed to support its claim for attorneys fees with a general evidentiary showing as to the reasonableness of its claimed fees. They assert that such a showing is necessary whenever a party seeks to recover attorneys fees for breach of contract.
Second, they insist that at least a portion of the attorneys fees originally awarded to the plaintiff on its successful breach-of-contract claims are not in fact recoverable under the Brokerage Agreements because they were not incurred for the one and only purpose for which they may be recovered thereunder, to wit: the collection of commissions that have become due and payable under the terms and conditions of the Agreements. Claiming, to the contrary, that the challenged fees were incurred solely to prosecute the plaintiff's Levin and CUTPA claims, which are assertedly unrelated in substance to the plaintiff's successful breach-of-contract claims, the defendants insist that all such fees must be deducted from the Court's original award of attorneys fees.
The plaintiff rejects the foregoing arguments on several grounds, which can be summarized as follows. As for the defendants' initial assertion that it failed to make a general evidentiary showing as to the reasonableness of its claimed attorneys fees in this case, the plaintiff responds: first, that no such showing is necessary to present a proper claim for attorneys fees under the relevant provisions of the Brokerage Agreements here at issue, for they do not expressly limit claims for attorneys fees to "reasonable attorneys fees"; and second, that even if such a general evidentiary showing were required to support an award of attorneys fees in this case, it unquestionably made such a showing at trial. As for the defendants' second argument — that the Court must deduct from its initial award of attorneys fees all fees incurred for the prosecution of claims other than those seeking to collect unpaid commissions due and owing under the Brokerage Agreements — the plaintiff responds: first that this is not a case in which the allocation of damages among its separate claims is appropriate because its counsel's entire effort, from the breakdown of its commercial relationship with the defendants in February 2002 until the present, has been geared to collecting its unpaid commissions on the Capital Ventures deal, which was finally accomplished by this action; and second, that even if allocation of its attorneys fees is necessary in this case, the only portions of its fees that it even arguably incurred solely to prosecute its non-commission-collection claims are those identified in the Second Supplemental Affidavit of its attorney, Mark E. Baldwin. Any greater deduction, asserts the plaintiff, would inappropriately fail to account for the great degree to which evidence relevant to its non-commission-collection claims is also relevant to issues arising in, and thus to be developed, understood and dealt with by counsel in preparing to try this case together with, the companion Capital Ventures Action.
Finally, the plaintiff makes two additional arguments concerning its claim for attorneys fees in this case. First, it claims that it should be awarded additional attorneys fees in this case, on both its successful breach-of-contract claims and its partially successful CUTPA claim, to compensate it for all post-trial fees it has incurred in this case to protect, preserve and enforce the judgment in its favor herein. Second, it claims that any fees deducted by the Court from its original award of attorneys fees for breach of contract because those fees were incurred solely to prosecute its CUTPA claim must be awarded to it on the latter claim.
For the following reasons, the Court: (1) disagrees with the defendants' initial argument that the plaintiff failed to prove the reasonableness of its claimed attorneys fees by not making a general evidentiary showing to that effect; (2) agrees with the defendants' second argument that certain deductions must be made from the Court's original award of attorneys fees to account for fees incurred by the plaintiff solely for the prosecution of its Levin and CUTPA claims; (3) agrees with the plaintiff that it is entitled to an additional award of attorneys fees for certain post-trial services rendered by its counsel `to oppose the instant Motion and otherwise preserve and protect its right to a full recovery herein; and (4) agrees in part with the plaintiff that it is entitled, on its CUTPA claim, to recover a portion of the fees deducted from its original attorneys fees award for breach of contract because they were incurred solely to prosecute the CUTPA claim.
II. CLAIM THAT PLAINTIFF FAILED TO SUPPORT ITS CLAIM FOR ATTORNEYS FEES WITH A GENERAL EVIDENTIARY SHOWING THAT ITS FEES WERE REASONABLY INCURRED
The general rule in this State is that attorneys fees cannot be awarded as damages in an action for breach of contract. Adhering to the so-called "American rule" on this subject, Connecticut ordinarily requires each party in a breach-of-contract action to assume full responsibility for paying its own attorneys fees.
There are two principal exceptions to this rule. The first is where responsibility for paying the prevailing party's attorneys fees is imposed on the losing party by statute. Because such statutes are in derogation of common law, they must be strictly construed against the party claiming fees thereunder, and are always construed to require a threshold showing by the prevailing party that the fees it seeks to recover from the losing party were reasonably incurred. Marsh, Day Calhoun v. Solomon, 204 Conn. 639, 652, 529 A.2d 702 (1987).
The second exception to this rule is where contracting parties agree by the terms of their contract to shift responsibility for paying the prevailing party's attorneys fees in a breach-of-contract action to the breaching party. Id. When the parties so agree, the prevailing party is entitled to recover its attorneys fees from the breaching party if and to the extent that the contract so provides, not as consequential damages for breach of contract but as part of the performance for which it bargained under the contract itself. Litton Industries Credit Corporation v. Catanuto, 175 Conn. 69, 76, 394 A.2d 191 (1978).
Under our case law, it has long been established that to be recoverable in a breach-of-contract action, the prevailing party's attorneys fees must be shown to have been reasonably incurred. As for what this showing must consist of, however, our case law makes a sharp distinction between contracts that expressly limit any recovery of attorneys fees to "reasonable attorneys fees" and those which do not. Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 245-46, 440 A.2d 306 (1982). In cases involving the former, the prevailing party bears the burden of establishing the reasonableness of its attorneys fees by showing that the fees in question were actually incurred, at reasonable rates, for work reasonably performed in the prosecution of its breach-of-contract claim. Stelco Industries, Inc. v. Cohen, 182 Conn. 561, 567-68, 438 A.2d 759 (1980). Though such a showing does not require the introduction of expert testimony; Appliances, Inc. v. Yost, 186 Conn. 673, 680-81, 443 A.2d 486 (1982) (quoting Piantedosi v. Floridia, 186 Conn. 275, 279, 440 A.2d 977 (1982), for the proposition that "Not only is expert testimony not required, but such evidence, if offered, is not binding on the court"); and may rely, at least in part, upon the trial court's own familiarity with local practice and the case before it; id.; it does assign the burden to the plaintiff to make a threshold evidentiary showing as to reasonableness of its claimed fees. Stelco Industries, Inc. v. Cohen, supra, 182 Conn. at 567-68.
When, by contrast, the contract does not specifically limit the plaintiff's right of recovery to "reasonable attorneys fees," but provides instead for the payment of all attorneys fees incurred in the prosecution of the breach-of-contract action, the contract presumptively entitles the prevailing party to all attorneys fees actually incurred by it in pursuing that action, except to the extent that the record shows on its face or the other party can demonstrate that such fees were actually incurred for a wholly different purposes. Storm Associates, Inc. v. Baumgold, supra, 186 Conn. at 245-46. To meet its burden of proof as to the amount of its recoverable attorneys fees under such a contract, the prevailing party need only present evidence of the services performed by its counsel and the fees billed for those services in the prosecution of the breach-of contract claim. TDS Painting Restoration, Inc. v. Copper Beech Farm, 73 Conn. App. 492, 521 n. 21, 808 A.2d 726 (2002). So established, such fees are presumptively reasonable, and thus are recoverable under the contract unless the breaching party can establish that such fees were unreasonable, either because they were billed at unreasonably high rates or because they were actually incurred for a wholly unrelated purpose. Id. ("[O]nce the prevailing party has demonstrated that designated costs reasonably were incurred in advancing the collection effort, the costs are recoverable unless the defendant can demonstrate that the costs were attributable to another purpose").
In this case, the Court awarded the plaintiff his attorneys fees under provisions in its Brokerage Agreements with the defendants which provide as follows:
8. OWNER agrees to pay BROKER'S legal fees and costs for collection of any commissions that shall become due and payable under the terms and conditions of this agreement . . .
Brokerage Agreements, ¶ 8. So worded, these provisions do not expressly limit the plaintiff to the recovery of "reasonable attorneys fees" for its efforts in collecting commissions that become due and payable under the Brokerage Agreements. Instead, they entitle it to recover all fees it incurs in collecting such commissions. It thus imposes on the plaintiff only the threshold obligation, subject to rebuttal by the defendants, to prove what services were rendered by its counsel, what fees it actually incurred for those services, and for what purposes it incurred those fees in its effort to collect those commissions.
In support of its claim for relief at trial, the plaintiff presented substantial evidence as to the attorneys fees it incurred in prosecuting its breach-of-contract claims to collect unpaid commissions in this action. Such evidence consisted of detailed records maintained by its counsel as to all case-related tasks he and others performed for the plaintiff, all hours they worked in performing such tasks, and all fees billed to the plaintiff for such work through July 17, 2003. The defendants supplied no evidence at trial to suggest that such tasks were not in fact performed, that counsel did not work or bill for the hours he claimed to have devoted to performing them, or that the rates at which he billed for those hours were unreasonable. They also failed to prove that the tasks, or thus the fees billed for them, were actually devoted to other purposes. Without such proof, the fees billed by plaintiff's counsel for his efforts on the case were presumptively reasonable, and thus were properly awarded to the plaintiff under the Brokerage Agreements.
III. CLAIM THAT PORTIONS OF THE PLAINTIFF'S CLAIMED ATTORNEYS FEES MUST BE DEDUCTED FROM THE COURT'S ORIGINAL AWARD BECAUSE THEY WERE INCURRED SOLELY FOR THE PROSECUTION OF THE OTHER UNRELATED CLAIMS AOn this Motion for Reargument, however, the defendants have argued for the first time that at least a portion of the plaintiff's claimed attorneys fees, as originally awarded to it on its successful breach-of-contract claims, were in fact incurred for purposes other than pursuing that claim, and thereby collecting the unpaid commissions due and payable to it on the Capital Ventures deal. In particular, the defendants argue that the challenged fees were incurred solely to prosecute the plaintiff's other claims in this action — particularly, its Levin claims and its CUTPA claim — for which attorneys fees are assertedly not recoverable under the Brokerage Agreements because did not contribute in any way to the "collection of . . . commissions [that had become] due and payable [to the plaintiff] under the terms and conditions those [A]greements." Brokerage Agreements, ¶ 8. Such contractual language, argue the defendants, precludes the plaintiff from recovering attorneys fees for legal services not devoted to the collection of commissions due and payable under the Agreements, including prosecution of the Levin claims to collect commissions not due and payable under the Agreements and prosecution of the CUTPA claim to obtain relief other than collection of a commission.
In making this argument, the defendants acknowledge that fees actually incurred for the prosecution of its successful breach-of-contract claims are not rendered non-recoverable merely because the legal services for which they were incurred also assisted the plaintiff to prosecute other claims on which attorneys fees are not recoverable. Accordingly, they recognize that when case-related tasks have multiple benefits or objectives, the true test for determining the recoverability of attorneys fees incurred in performing them is whether they were reasonably incurred for the prosecution of the claim on which their recovery is sought. If so, they are fully recoverable on that claim even if they incidentally contributed to the prosecution of other claims.
Here, however, the defendants argue that fees incurred on the plaintiff's successful CUTPA and unsuccessful Levin claims are not recoverable on its successful breach-of-contract claims because the former claims are assertedly based upon completely different acts and events, occurring in completely different time frames, than those on which the latter claims are based. Specifically, though the plaintiff's successful breach-of-contract claims were based upon its procurement of Capital Ventures as a ready, willing and able buyer for the defendants' listed Properties on or about October 15, 2001, when the amended CV Sales Agreement was signed, the successful portion of its CUTPA claim was based upon the defendants' later efforts to market the Properties behind the plaintiff's back from December 14, 2001, when the amended CV Sales Agreement was terminated, until January 13, 2002, when the Brokerage Agreements expired, and its unsuccessful Levin claims were based upon the defendants' even later refusal to market the Properties to Mr. Levin in the post-expiration "tail period" starting on January 14, 2002. Therefore, it argues, because such claims are not based upon the same common core of facts as those which underlie its successful breach-of-contract claims, fees incurred solely for the prosecution of such claims must be deducted from the Court's original award of attorneys fees for breach of contract.
The plaintiff responds to the foregoing arguments in two basic ways. First, although it acknowledges that its right to recover attorneys fees under the Brokerage Agreements is limited to fees incurred for the collection of commissions that have become due and payable to it under the Agreements, it asks this Court to find that its entire effort in this case, from start to finish, has been geared to recovering the plaintiff's earned but unpaid commissions on the Capital Ventures deal. That focused effort, it claims, started in February of 2002, when it first retained counsel after the breakdown in the parties' commercial relationship, and has continued to this day through several discrete but overlapping stages, including: the liening of the defendants' Properties in late Winter of 2002; the later, successful defense of those liens against the defendants' repeated efforts to discharge them; efforts to negotiate a final resolution of the parties' dispute over payment of its commission by having its client, Mr. Levin, "step into the shoes" of Charles Gersten, assume the defendants' mortgage, and take over and complete the Capital Ventures deal, essentially as Mr. Gersten and the defendants had negotiated it; preparation of this case for trial, both before and after it was consolidated with the Capital Ventures Action in October of 2002; and the handling of all pretrial, trial and post-trial proceedings in the consolidated cases thereafter. Because these concerted efforts have finally succeeded in accomplishing the one objective for which they were always allegedly undertaken — the collection of the plaintiff's unpaid commission on the Capital Ventures deal — the plaintiff argues that all attorneys fees it incurred for such efforts are fully recoverable under the Brokerage Agreements. This, then, it argues, is not a proper case in which to make deductions from the Court's original attorneys fees award to account for the unsuccessful prosecution of certain of its claims at trial.
Second, the plaintiff contends that even if this is a proper case in which to deduct certain of its claimed fees from the Court's original attorneys fees award because they were incurred solely for the purpose of prosecuting one of its other, factually unrelated claims, the fees to be deducted should be strictly limited to those incurred for services which demonstrably did not contribute to the collection of its commissions on the Capital Ventures deal. The only fees even arguably eligible for such consideration, claims the plaintiff, are those listed in the Second Supplemental Affidavit from its counsel, Mark Baldwin, dated April 16, 2004.
As for the remainder of its incurred fees, the plaintiff contends that in the special procedural posture of this case, the vast majority are recoverable because they were incurred either to prosecute its breach-of-contract claim directly or to develop, understand and deal with issues potentially arising in the companion Capital Ventures Action, for which it had no choice but to be prepared when the two actions, which had been consolidated over its objection, were brought to trial. If and to the extent that fees incurred in preparing and presenting its Levin and CUTPA claims would have been incurred by it anyway to prepare for a joint trial of its own claims and the claims presented in the companion action, the plaintiff argues that such fees must not be deducted from the Court's original award of attorneys fees herein.
B
The Court is persuaded by the plaintiff that the central, unifying purpose of its attorneys efforts ever since he was hired to assist it in connection with this controversy has been to recover all commissions due it under the terms and conditions of its Brokerage Agreements. This purpose marked counsel's early efforts to lien the defendants' Properties and defend those liens against the defendants' efforts to discharge them, as well as its efforts to settle the entire controversy by having Mr. Levin step into the shoes of Mr. Gersten, assume the defendants' mortgage, and take over the Capital Ventures deal on essentially the same terms as Mr. Gersten and the defendants had negotiated it.
In this action, however, it has been apparent from the outset that, in addition to pursuing its successful breach-of-contract claims to collect its unpaid commissions on the Capital Ventures deal, the plaintiff has actively pursued several other claims as well. This fact has been evidenced both by the text of the plaintiff's Complaint, where it pleaded its Levin claims and its CUTPA claim in separate counts, and by its written and oral advocacy throughout this case. The claims in question are logically separate from and independent of the plaintiff's successful breach-of-contract claims because, as the defendants correctly argue, they are based upon separate acts or courses of conduct, all allegedly occurring at different times and causing distinct and different losses. Whereas the plaintiff's right to recover its commissions on the Capital Ventures deal was fully vested as of October 15, 2001, when it procured Capital Ventures as a ready, willing and able buyer for the defendants' Properties, the later conduct upon which the successful portion of its CUTPA claim was based did not take place until the final month of the Brokerage Agreements, from December 14, 2001 through January 13, 2002, and the even later conduct at issue in the Levin claims did not begin until the Brokerage Agreements expired. Accordingly, and of no small significance here, the plaintiff pursued these claims, from start to finish, not as alternative or complementary bases for recovering a single set of damages, but as separate bases for recovering different types and amounts of damages for discrete and different losses, all allegedly resulting from different acts or courses of conduct. For that reason, this Court cannot agree with the plaintiff that this is a case in which all of its claimed attorneys fees should be awarded to it, despite its losses on certain claims, because by prevailing on its successful breach-of-contract claims, it achieved a near-complete success in the entire action.
Instead, the Court agrees with the defendants that the substance of the plaintiff's Levin and CUTPA claims is so unrelated to that of its successful breach-of-contract claims as to make attorneys fees incurred solely to prosecute the former unrecoverable on the latter, because they were not at all incurred to "collect . . . commissions . . . due and payable under the terms and conditions of the [Brokerage A]greements." Brokerage Agreements, ¶ 8. This conclusion is well supported by controlling Connecticut case law, including Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 510 A.2d 972 (1986), on which the plaintiff relies in making its argument to the contrary. In Reynolds, the Connecticut Supreme Court rejected the defendant's claim that the trial court had erred by awarding the plaintiff — who had prevailed on three of five claims at trial, including a claim under the Connecticut Uniform Securities Act ("CUSA"), General Statutes § 36-498 — 100% of his claimed attorneys fees without deducting a percentage to account for his failure to prevail on two other claims. The Court disposed of this argument as follows:
The defendants first argue that the award was excessive as a matter of law because the fees that the trial court allowed improperly included amounts allocable to the plaintiff's unsuccessful claims of fraud and violation of CUTPA. This argument is unpersuasive because it erroneously assumes that, under § 36-498, an award of attorneys fees must automatically be reduced if its recipient fails to prevail on all of his claims at trial. We have no such rule. A plaintiff may recover "reasonable attorneys fees" under § 36-498 only if he prevails on his § 36-498 claim. The magnitude of the amount awarded to a victorious party rests within the sound discretion of the trial court. See Kenny v. Civil Service Commission, 197 Conn. 270, 277-78, 496 A.2d 956 (1985); Moffitt v. Horrigan, 37 Conn. Sup. 873, 876, 441 A.2d 207 (1982). Where a party succeeds on his § 36-498 claim, but fails on other claims brought in the same suit, the size of his award should reflect his success, as determined by the trial court, in securing redress for the injuries that prompted his § 36-498 claim and reasonable legal cost incurred in pursuing this success. See Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). In this case, the plaintiff sought relief on five separate legal theories, for losses he had sustained as a result of a transaction that the defendants had arranged. He succeeded in this endeavor by prevailing on three of the five related counts. [Footnote omitted.] Because the amounts he expended on litigation, including the dollars spent on his unsuccessful claims, were devoted to the pursuit of a goal that he achieved, the trial court permissibly rejected the defendants' demand that it reduce the award by two-fifths.
(Emphasis added.) Russell v. Dean Witter Reynolds, Inc., supra, 200 Conn, at 194-95. The upshot of Reynolds is that the size of an attorneys fees award must be made to depend upon the degree of the plaintiff's success in pursuing the goals of the litigation. Where, as in Reynolds, a plaintiff seeks money damages for a single set of losses allegedly resulting from a single transaction, he may be found to have fully succeeded in accomplishing his litigation goals if he prevails and recovers full damages on even one of his alternative theories of liability. In that event, all attorneys fees incurred in performing case-related tasks devoted to recovering such damages can justifiably be awarded to him even though some such fees were incurred in developing and presenting his unsuccessful alternative claims. By the same token, the decision clearly suggests that when a plaintiff makes several claims in a single lawsuit that are unrelated, in the sense that they do not seek the same or similar damages for a single set of losses, but instead seek different damages for different losses allegedly suffered in discrete and different transactions, the successful prosecution of one or more such unrelated claims does not signal success on, or warrant the awarding of attorneys fees for hours worked in prosecuting, any of his other unrelated claims.
This, in fact, is one of the core teachings of the United States Supreme Court in Hensley v. Eckerhart, supra, 461 U.S. 427, upon which the Reynolds Court expressly based its holding. On this score, in particular, the Hensley Court observed that:
In some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories. In such a suit, even where the claims are brought against the same defendants — often an institution and its officers, as in this case — counsel's work on one claim will be unrelated to his work on another claim. Accordingly, work on an unsuccessful claim cannot be deemed to have been "expended in pursuit of the ultimate result achieved." Davis v. County of Los Angeles, 8 E.P.D., at 5049.
Under the foregoing cases, the Court concludes that since efforts by counsel to prepare and present the plaintiff's Levin and CUTPA claims would have done nothing to promote the success on the merits of its factually unrelated breach-of-contract claims to collect its unpaid commissions on the Capital Ventures deal, attorneys fees incurred solely for such efforts are not recoverable on its breach-of-contract claims, and thus must be deducted from the plaintiff's original attorneys fees award. If and to the extent that any such fee was separately billed, it must be subtracted directly from the Court's original attorneys fees award. If, however, it was billed as part of an aggregate fee for services of which only a portion is recoverable on the plaintiff's breach-of-contract claims, the Court must determine what portion of the fee is recoverable and what part is not then subtract the latter from its original award.
C
Whether a fee incurred to prosecute the plaintiff's Levin or CUTPA claims was incurred solely for that purpose depends upon whether, when the fee was incurred, the task for which it was incurred was necessary or appropriate for any other, contractually compensable case-preparation purpose. From the time of the commencement of this action in May of 2002 until the time of its consolidation with the Capital Ventures Action in October of that year, counsel's efforts to prepare and prosecute the plaintiff's Levin and CUTPA claims contributed nothing to the successful prosecution of its breach-of contract claims to collect its unpaid commissions on the Capital Ventures deal. The Court therefore concludes that any attorneys fees billed for those services in that time frame, either for the legal development of those claims, by research, complaint drafting or otherwise, or the factual development of those claims, by investigation, discovery or the like, must be deducted from the Court's original award of attorneys fees herein.
Following consolidation and transfer, however, the plaintiff was required to broaden the scope of its case preparation efforts in order to discover, understand and deal with not only all issues raised or raisable in its own case, but also all issues raised or raisable under the pleadings in the companion Capital Ventures Action. Although Zappone Co. made no claims of its own in the companion action and had no claims made against it therein, prudence required it, from the date of consolidation forward, to participate actively and effectively in each and every phase of both consolidated cases, if only to identify and lessen any prejudice that might arise from the joint trial of its own claims and claims presented in the companion action.
Looking, in particular, to the effect of consolidation on the appropriateness of incurring attorneys fees to develop the facts underlying the plaintiff's own Levin claims in preparation for a joint trial of its factually unrelated breach-of-contract claims with the claims presented in the Capital Ventures Action, the Court takes special note of the common care of facts that underlie the Levin claims and Capital Ventures' claim of failure to mitigate damages, which it pleaded as a special defense to the defendants' Counterclaim in the Capital Ventures Action. Both the Levin claims and Capital Ventures' special defense were based upon the defendants' alleged failure and refusal, following Capital Ventures' default under and their own resulting termination of the amended CV Sales Agreement, to market the Properties to Mr. Levin — a prospective purchaser who might otherwise have purchased the Properties on terms acceptable to the defendants. Full development of those facts, though never necessary to prepare and present the substance of the plaintiff's breach-of-contract claims, thus became necessary and appropriate for the plaintiff after consolidation was ordered in order to prepare for a joint trial of its own claims with those presented in the Capital Ventures Action, particularly Capital Ventures' claim of failure to mitigate damages. Therefore, after consolidation, time devoted by counsel to developing the facts underlying the Levin claims can fairly be found to have contributed to the successful joint prosecution of its breach-of-contract claims.
At the second oral argument on this Motion, defense counsel suggested that fees incurred by the plaintiff for its counsel's participation in discovery as to the common core of facts underlying its own Levin claims and Capital Ventures' failure-to-mitigate claim cannot be awarded as attorneys fees on its successful breach-of-contract claims because Capital Ventures had no legitimate basis for asserting a failure-to-mitigate-damages claim in the Capital Ventures Action. As support for that position, defense counsel cited this Court's ultimate holding that failure to mitigate damages does not constitute a valid basis for reducing the amount of a liquidated damages award. For the following reasons, however, the Court finds that this argument is without merit.
First, the reason why fees billed by counsel for Zappone Co. for participation in discovery or other fact development of issues arising in the companion Capital Ventures Action are recoverable as attorneys fees on its successful breach-of-contract claims is that because of the consolidation, which was sought by the defendants and ordered by the Court, the plaintiff could not go to trial and obtain a judgment on its breach-of-contract claims without participating in a joint trial involving the litigation of all claims pending in the Capital Ventures Action. The question thus is not whether the claims in that action were meritorious, but whether they were raised or raisable at all. As long as such claims could be asserted in the companion action, plaintiff's counsel, to reiterate, was obliged not only to take note of those claims but to understand them sufficiently to anticipate and avoid any prejudice to his client that might result from trying the claims together in a single trial.
Secondly, if any claim pending in a companion action has no legal merit, it is incumbent on the party who must face that claim directly to mount a suitable legal challenge to it to eliminate it from the case. Here, of course, the defendants who contest this action were the same defendants who filed the Counterclaim in the Capital Ventures Action. Hence, if they thought that there was no valid legal basis for Capital Ventures' special defense of failure to mitigate damages, as it was pleaded against them, they could have moved to strike that special defense, which they did not do. Zappone Co. cannot be faulted for having its attorney participate in discovery as to the factual underpinnings of a pending special defense in a companion action when the parties to whom the defense was directed did not see fit to challenge it before trial.
Thirdly, and of great potential significance, it must be noted that any effort to challenge Capital Ventures' special defense of failure to mitigate damages would not have succeeded because the Counterclaim to which it was interposed was pleaded in the alternative. On the one hand, as previously noted, the defendants, as counterclaim plaintiffs, sought a ruling that they were entitled to retain Capital Ventures' $250,000 deposit as liquidated damages for Capital Ventures' alleged breach of the amended CV Sales Agreement. On the other hand, however, their Counterclaim included a parallel claim for damages based upon Capital Ventures' alleged failure to honor its contractual obligations under the amended CV Sales Agreement. Though this Court ruled in its Memorandum of Decision, after the defendants belatedly elected to pursue their claim for liquidated damages, that failure to mitigate damages is not a viable special defense to such a claim, it recognizes that failure to mitigate damages is a valid special defense to any claim for actual damages allegedly resulting from a breach of contract. See, e.g., Newington v. General Sanitation Service Co., 196 Conn. 81, 85, 491 A.2d 363 (1985). Hence, had the special defense been challenged for its legal sufficiency on a motion to strike, it would surely have survived the challenge insofar as it applied to defendant-counterclaim plaintiffs' alternative claim for actual damages.
For all of the foregoing reasons, the Court concludes that the pendency of Capital Ventures' failure-to-mitigate-damages claim in the Capital Ventures Action well justified Zappone Co. in having its counsel participate fully in discovery and engage in other fact development efforts with respect to the common facts underlying its Levin claims and Capital Ventures' failure-to-mitigate-damages special defense. Therefore, fees reasonably incurred by counsel for that purpose, though incidentally useful in developing Zappone Co.'s own Levin claims before trial, may properly be awarded as attorneys fees on Zappone Co.'s successful breach-of-contract claim.
Notwithstanding the appropriateness of incurring attorneys fees to conduct discovery and engage in other fact development efforts with respect to the common facts underlying its Levin claims and the defendants' special defense of failure to mitigate damages, Zappone Co. can assert no valid reason for incurring attorneys fees to prepare or present legal arguments in support of iis Levin claims before or during trial. Services rendered by counsel to perform such tasks did nothing to promote the successful prosecution of the plaintiff's breach-of-contract claims, and thus cannot fairly be recovered by the plaintiff as attorneys fees on those claims.
As for the defendants' challenge to the recoverability of attorneys fees incurred solely for the prosecution of the plaintiff's CUTPA claim, the Court's general approach must be similar to that taken above with respect to its Levin claims. That is, because the factual basis of the CUTPA claim, like that of the Levin claims, is unrelated in substance to that of the plaintiff's successful breach-of-contract claims, fees incurred solely to prosecute the CUTPA claim are not recoverable on the breach-of-contract claims unless the tasks for which they were incurred also served some other, contractually compensable case-preparation purpose.
Here, as on the Levin claims, one purpose that is clearly compensable under the Brokerage Agreements is preparation by counsel to understand and deal with issues raised by the pleadings in the companion Capital Ventures Action, with which this action was to be jointly tried. If and to the extent that factual issues arising under its CUTPA claim overlapped with factual issues raised by the pleadings in the Capital Ventures Action, fees incurred for the pretrial development of those facts, by investigation, discovery or otherwise, can appropriately be awarded on its successful breach-of-contract claim.
Here, in fact there is substantial overlap between the facts underlying the plaintiff's CUTPA claim and certain claims made by Capital Ventures in the Capital Ventures Action. To begin with, Capital Ventures filed its own CUTPA claim, which it based upon the entire course of its own dealings with the defendants concerning the listed Properties. Those dealings overlap substantially with the dealings at issue on the first part of the plaintiff's CUTPA claim, and thus would have been fully developed and litigated in a joint trial of the consolidated actions even if the plaintiff had not prosecuted its CUTPA claim.
As for the second part of the plaintiff's CUTPA claim, if, like the Levin claims, was based principally upon the defendants' refusal to sell the Properties to the plaintiff's client, Mr. Levin, after the Brokerage Agreements expired. Therefore, this part of the plaintiff's CUTPA claim, just like its Levin claims, was based upon the same common core of facts as those underlying Capital Ventures' special defense to the Counterclaim of failure to mitigate damages. Because those facts would certainly have been litigated in any joint trial of this action and the Capital Ventures Action even if the plaintiff did not pursue its CUTPA claim, tasks performed by plaintiff's counsel to discover, understand and deal effectively with those facts were plainly necessary and appropriate to prepare himself for trial. Fees incurred for the performance of those tasks are thus recoverable by the plaintiff on its breach-of-contract claims because after consolidation, the only way it could recover on such claims was to present and prevail on them in such a joint trial.
On the plaintiff's CUTPA claim, however, as on its Levin claims, no amount of overlap between the facts underlying that claim and claims made by Capital Ventures in the companion Capital Ventures Action can reasonably be found to justify the awarding of attorneys fees to the plaintiff on its successful breach-of-contract claims for services rendered by counsel in preparing or presenting legal arguments in support of its CUTPA claim before or during trial. The plaintiff's prosecution of its legal claim under CUTPA, though potentially compensable under CUTPA itself, is not compensable under its successful breach-of-contract claims for the simple reason that prosecution of that claim — for entirely different damages than the breach-of-contract claims, based upon different acts or courses of conduct occurring at different times — contributed nothing to the successful prosecution of the latter claims. Accordingly, deductions must be made from the Court's original attorneys fees award for fees expended solely for the legal development, pleading, briefing and oral argument of the plaintiff's CUTPA claim.
Reviewing the materials submitted by Zappone Co. in support of its claim for attorneys fees on its successful breach-of-contract claim, the Court must therefore identify from plaintiff's counsel's records, then deduct from its original award of attorneys fees, all fees incurred solely for the following purposes: (1) the factual development of the Levin claims and/or the CUTPA claim prior to consolidation of this action with the Capital Ventures Action for trial; and (2) the legal development, pleading, briefing or argument of the Levin claims and/or the CUTPA at any time, before or after consolidation was ordered.
D
Prior to consolidation, it appears from counsel's records that he billed the plaintiff only twice for documented case-preparation efforts devoted solely to the development or presentation of Zappone Co.'s Levin and/or CUTPA claims. The relevant billings, both for services rendered by counsel's associate, Attorney Kara L. Brooks, at the rate of $325 per hour, were listed as follows on counsel's itemized bill for services dated May 31, 2002:
Date Professional Hours Value
04/10/02 BROOKS — conferenced with E. 0.4 130.00 Gersten re: claims against Orsini (sic)
04/19/02 BROOKS — preparation of action 0.9 292.50 in damages and research re: claims against Orsini (sic) individually
Exhibit #188. These charges, totaling $422.50, must be deducted directly from the Court's prior award of attorneys fees because they were manifestly not incurred to prosecute the plaintiff's successful breach-of-contract claims, which were brought only against Plymouth Commons and Terryville Holding, not Mr. Ursini.
In addition to the foregoing, counsel billed the plaintiff for certain services that expressly included, but were not limited to, work devoted solely to the development of claims other than its breach-of-contract claims. The billings in question, also for services rendered by Attorney Brooks at the rate of $325 per hour, were listed as follows in counsel's itemized bill for services dated May 31, 2002:
Date Professional Hours Value
02/14/02 BROOKS — research re: potential 0.9 292.50 causes of action to recover Commissions; research re: recovery of punitive damages/attorneys fees
04/26/02 BROOKS — conferenced with 0.9 292.50 Atty. Gersten re: status of negotiations; research re: tortious interference claim against Orsini (sic)
(Emphasis added.) Exhibit #188. Assuming that one-half of the time for which these two billing entries were made was devoted solely to the performance of the tasks underscored therein — neither of which contributed at all to the successful prosecution of the plaintiff's breach-of-contract claims — a further deduction of $292.50 must be made directly from the Court's prior award of attorneys fees.
A third set of pre-consolidation billing entries that do not specifically itemize tasks performed solely for the research, development, pleading or presentation of the plaintiff's Levin and/or CUTPA claims, but surely include hours billed solely for such work, which must be deducted from the Court's original award of attorneys fees, include non-specific entries for time spent researching and discussing possible theories of recovery in this action and in drafting the plaintiff's Complaint. These billings — for services rendered by Attorney Brooks, at the rate of $325 per hour, in researching and discussing possible theories of recovery in this action and drafting the plaintiff's Complaint — were listed as follows in counsel's itemized bills for services dated May 31, 2002 and July 30, 2002:
Date Professional Hours Value
04/23/02 BROOKS — conferenced with 1.5 487.50 F. Mascolo re: settlement; conferenced with F. Mascolo re: Mascolo conversation; research re: damages claim
04/30/02 BROOKS — preparation of action 4.8 1,560.00 against Orsini, Terryville, and Plymouth Commons; research re: motion to discharge lien
(Emphasis added.) Exhibit #188.
05/01/02 BROOKS — conferenced with F. 1.8 585.00 Zappone re: action in damages: revisions to same; preparation for hearing
05/02/02 BROOKS — revisions and 2.3 747.50 additions to complaint: conferenced with Atty. Baldwin re: same: conferenced with F. Zappone re: same
(Emphasis added.) Exhibit #189. Assuming, conservatively, for the first three of the foregoing entries, that two-thirds of the time therein documented was devoted to performing the tasks underscored Therein, for an aggregate total of 5.4 hours working on researching and preparing the plaintiff's Complaint, and assuming further that two-thirds of the plaintiff's unallocated time spent in preparing its Complaint was devoted to researching and drafting claims other than its breach-of-contract claims, a further deduction of $1,170.00, representing 3.6 hours of Attorney Brooks' time, must be made from the Court's original award of attorneys fees on its successful breach-of-contract claims. As for the fourth and final entry, since all of the time therein documented was clearly spent in preparing the plaintiff's Complaint, a further deduction of $498.33, representing two-thirds of the services billed, must be deducted from the Court's original attorneys fees award.
Calculated as aforesaid, a total sum of $2,383.33 must be deducted from the Court's original award of attorneys fees to account for all fees incurred by the plaintiff before this action was consolidated with the Capital Ventures Action, for the legal and factual development of claims unrelated in substance to the plaintiff's successful breach-of-contract claims.
E
As for the period after consolidation, to reiterate, the only deductions that must be made from the Court's original award of attorneys fees are for fees incurred in that time frame to prepare and present legal arguments in support of the plaintiff's factually unrelated Levin and CUTPA claims. Plaintiff's counsel has supplied this Court, in his Second Supplemental Affidavit dated April 16, 2004, with a list of all fees concededly incurred by his client solely to prosecute his Levin claims. As reported by counsel, all such fees were billed — for work performed by himself, at the rate of $365 per hour, and/or by his associate, Attorney Sandra Davis, at the rate of $265 per hour — as follows:
Date Professional Hours Value
7/14/03 DAVIS — Attention to 0.5 132.50 additional research issues re: covenant of good faith and fair dealing
7/15/03 BALDWIN — Research re: implied 4.1 1,496.50 Covenant of good faith and fair dealing; telephone conference with client
7/15/03 DAVIS — Research re: implied 3.8 1,007.00 covenant of good faith and fair dealing
7/16/03 BALDWIN — Finalize supplemental 4.5 1,642.50 brief; correspondence to court; conference with client
Second Supplemental Affidavit of Mark S. Baldwin (4/16/04), pp. 3-4. These fees, totaling $4,278.50, must be deducted from the Court's original award of attorneys fees because they were incurred solely for the prosecution of one of the plaintiff's two Levin claims.
The Court believes, however, that in order to account fairly for post-consolidation fees which were incurred by the plaintiff solely for the unrecoverable purpose of presenting legal argument on its Levin and CUTPA claims, further deductions must be made, in allocated percentages, for billings for services that included, but were not limited to, researching, briefing and arguing those unrelated claims. To that end, the Court must identify from counsel's billing records all entries made for work that included such non-compensable tasks, then determine what part of those billings constitute fees incurred solely for the performance of such tasks.
In the Court's view, the tasks in question include conducting legal research as to the legal issues presented for decision in the case, drafting proposed findings of fact and conclusions of law concerning those issues, and preparing for and presenting final argument thereon. A review of counsel's itemized bill for services dated June 30, 2003, together with the initial Affidavit of Mark S. Baldwin dated July 17, 2003, to which if is attached, reveals the following relevant entries:
Date Professional Hours Value
6/13/03 BALDWIN — Final day of trial; 2.50 912.50 prepare for same; initial draft of findings
6/16/03 BALDWIN — Drafting of findings 1.80 657.00
6/17/03 BALDWIN — Drafting of findings 3.10 1,131.50
6/19/03 BALDWIN — Further drafting of 3.70 1,350.50 findings: receipt of email from F. Zappon re: same
6/23/03 BALDWIN — Further drafting of 3.30 1,204.50 findings: telephone conference with court clerk re: re: scheduling
6/24/03 BALDWIN — Further drafting of 3.60 1,350.50 findings: telephone conference with H. Maron
6/26/03 BALDWIN — Further drafting 1.70 620.50
6/27/03 BALDWIN — Further drafting 1.20 438.00
6/30/03 BALDWIN — Further drafting 1.80 657.00
(Emphasis added.) Exhibit B to Affidavit of Mark S. Baldwin (7/17/03).
7/1/03 [BALDWIN] — Further 1.20 [438.00] of drafting proposed findings; research re: same; telephone conference with client
The Affidavit of Mark S. Baldwin dated July 17, 2003, on which this and all subsequently listed billing entries appeared, expressly noted that all such entries pertained to work performed personally by Attorney Baldwin at the rate of $365 per hour. The "Value" listed in brackets for each such entry represents the product of hours worked by Attorney Baldwin times his above-stated billing rate.
7/2/03 [BALDWIN] — Receipt and review 1.80 [657.00] of client's comments; revisions to proposed findings
7/3/03 [BALDWIN] — Two telephone 280 [1,022.00] conversations with client; further revisions; drafting of PJR documents
7/7/03 [BALDWIN] — Finalize proposed 3.30 [1,204.50] findings; finalize PJR documents; correspondence to Judge; two telephone conferences with client
7/8/03 [BALDWIN] — Receipt and review 2.10 [766.50] of defendants' brief; telephone conference with client regarding same; preparation of reply brief
7/9/03 [BALDWIN] — Further drafting 2.80 [1,022.00] of reply brief telephone conference with Harvey Maron; two telephone conferences with client
7/10/03 [BALDWIN] — Research re: CUTPA 3.30 [1,204.50] issue: further drafting of reply brief CT Page 11262
7/11/03 [BALDWIN] — Finalize reply 4.60 [1,679.00] brief; draft affidavit of attorneys fees; preparation for hearing
7/14/03 [BALDWIN] — Preparation for 7.50 [2,737.50] hearing; hearing before Judge Sheldon; conference with client
7/17/03 [BALDWIN] — Update affidavit; 1.20 [438.00] filing of same
(Emphasis added.) Affidavit of Mark S. Baldwin (7/17/03), pp. 1-2.
From these entries, the Court first finds that plaintiff's counsel billed the plaintiff a total of $9,125.00 for 25 hours he worked between June 13 and July 7, 2003 in preparing his client's proposed findings of fact and conclusions of law in this action. Upon reviewing that carefully crafted, 50-page submission to determine what portion of it was devoted to supporting and arguing the plaintiff's successful breach-of-contract claims, and thus was compensable on those claims, the Court found that fully 50% of it (16 of 30 pages of proposed findings of fact and 9 of 20 pages of conclusions of law) was devoted to those claims. The remaining 50% of the submission, by contrast, was devoted solely to supporting and arguing the plaintiff's unrelated Levin and CUTPA claims. Hence, fees attributable to the rendering of those remaining services, in the amount of $4,562.50, must be deducted from the Court's original award of attorneys fees on the plaintiff's successful breach-of contract claims.
The foregoing entries also establish that plaintiff's counsel billed the plaintiff a total of $2,920.00 for 8 hours he worked between July 8 and July 11, 2003 in drafting his client's pre-argument reply brief in this action. Upon reviewing the reply brief to determine what portion of it was devoted to supporting and arguing the plaintiff's successful breach-of-contract claims, and thus was compensable thereunder, the Court found that approximately 60% of it (over 7 of its 11.5 total pages of legal argument) was devoted to those claims. The remaining 40% of the reply brief, by contrast, was devoted solely to supporting and arguing the plaintiff's unrelated Levin and CUIPA claims. Fees incurred for drafting that portion of the reply brief, in the amount of $1,168.00, are not recoverable on the plaintiff's successful breach-of-contract claims, and thus must be deducted from the Court's original award of attorneys fees thereon.
A third set of fees billed by plaintiff's counsel for preparing and presenting legal arguments on behalf of his client in this action includes the $3,650.00 he billed the plaintiff for approximately 10 hours of work in preparing for and presenting and final argument herein. In performing this work, as in preparing the plaintiff's proposed findings of fact and conclusions of law, the Court would estimate that counsel devoted approximately 50% of his total time and effort to supporting and arguing his client's successful breach-of-contract claims, while devoting the remainder solely to supporting and arguing its unrelated Levin and CUTPA claims. Because fees incurred solely for the rendering of legal services on the latter claims are not recoverable on the plaintiff's breach-of-contract claims, such fees, in the amount of $1,825.00, must be deducted from the Court's original award of attorneys fees herein.
Calculated as aforesaid, the additional sum of $11,834.00 must be deducted from the Court's original award of attorneys fees to account for all fees improperly included in that award which were incurred by the plaintiff after this action was consolidated with the Capital Ventures Action, solely for the briefing and argument of claims unrelated in substance to the plaintiff's successful breach-of-contract claims. Combined with total deductions of $2,383.33 for fees incurred before consolidation for the research, development and pleading of such unrelated claims, a total of $14,217.33 must be deducted from the Court's original award of attorneys fees under the first part of its present Motion.
III. PLAINTIFF'S CLAIM THAT IT IS ENTITLED TO ADDITIONAL ATTORNEYS FEES FOR POST-TRIAL SERVICES RENDERED BY ITS COUNSEL TO PRESERVE, PROTECT AND ENFORCE ITS JUDGMENTIn opposing this Motion, as previously noted, the plaintiff has asked this Court not only to reject the defendants' challenges to its original award of attorneys fees for breach of contract and its awards under CUTPA, but to award it additional attorneys fees for post-trial services rendered by its counsel since the date of final argument in this case. In support of this request, the plaintiff has submitted two supplemental affidavits from counsel, plus several attached billing statements from counsel's law firm, itemizing legal services rendered to the plaintiff and amounts billed for those services between July 18, 2003 and April 15, 2004. Such itemized services, for which counsel billed the plaintiff an aggregate total of $20,981.21, include: (1) reviews of the defendant's post-trial briefs (2.8 hours in late July of 2003, billed at $978.00); (2) miscellaneous communications between counsel and the plaintiff's principal, Mr. Zappone (2.2 hours in the fall of 2003, billed at $838.00); (3) computer research in late November of 2003 (billed at $783.02); (4) preparation and filing of judgment liens following the issuance of the Court's Memorandum of Decision (15.4 hours in late January of 2004, billed at $5,464.00, plus expenses of $358.19, for a total of $5,822.19); (5) preparation of objections to defendants' motion to extend time to file this Motion for Reargument (2.5 hours in early to mid-February of 2004, billed at $1,000.00); (6) preparation of the plaintiff's initial brief in opposition to this Motion and Supplemental Affidavit of Mark S. Baldwin dated March 17, 2004 (17.5 hours from late February until mid-March of 2004, billed at $7,000.00); and (7) later proceedings on this Motion Through April 15, 2004, including preparation for and presentation of oral argument at the initial hearing hereon on April 7, 2004 and preparation of the Second Supplemental Affidavit of Mark S. Baldwin dated April 16, 2004 (11.4 hours, billed at $4,560.00).
The defendants have opposed the plaintiff's request for additional attorneys fees on the ground that all such fees were incurred solely for services that are not compensable under the Brokerage Agreements. Focusing only on those fees which the plaintiff claims to have incurred to oppose the instant Motion, the defendants argue, in particular, that such fees are not recoverable on the plaintiff's successful breach-of-contract claims because they were incurred solely to preserve and protect the plaintiff's original award of attorneys fees on those claims. Arguing that the only attorneys fees recoverable under the Brokerage Agreements are those incurred to "collect . . . commissions that become due and payable under the terms and conditions of the [A]greements[;]" id., ¶ 8; they contend that no such fees were incurred to oppose this Motion because the Motion challenges only its award of attorneys fees, not its award of commissions on the Capital Ventures deal.
Insofar as the plaintiff's request for additional attorneys fees arises under the Brokerage Agreements, its right, if any, to recover such fees is plainly governed by the language of those Agreements, as the parties understood it. The critical question presented by this argument is whether the parties, by their choice of contractual language, expressed the intention that the plaintiff, if successful in a breach-of-contract action to collect a commission due and payable to it under the Brokerage Agreements, can recover not only all legal fees and costs it incurs to collect its unpaid commission, but also all legal fees and costs it incurs to recover its recoverable fees and costs and to defend an award of such fees and costs thereafter.
Here, the Court finds that by agreeing to have the defendant pay the plaintiff's "legal fees and costs for collection of any commissions that shall become due and payable under the terms and conditions of the agreements[;]" Brokerage Agreements, ¶ 8; the parties sought to ensure that the plaintiff would receive the full value of any commission due and payable to it under the Brokerage Agreements, without discounts or deductions of any kind. With that as their purpose, they cannot reasonably be found to have agreed that the plaintiff, if owed a commission by the defendants which it must sue to collect should bear the costs of preparing and presenting its claim for attorneys fees in that commission-collection action, when to do so would inexorably reduce its net recovery, and thus deny it the full value of its earned commissions. The Court thus concludes that the plaintiff is entitled under the Brokerage Agreements to recover all attorneys fees incurred for services rendered by its counsel, both before and after judgment, to enforce its contractual right to attorneys fees in its commission-collection action, and by so doing to preserve its core contractual right to recover the full value of its unpaid commissions.
Insofar as the plaintiff's request for additional attorneys fees arises under CUTPA, the plaintiff is no less entitled to recover attorneys fees for hours actually worked to protect and preserve its CUTPA award from post-judgment challenge than if was to recover such fees for preparing and presenting its CUTPA claim at trial. Hence, any portion of the plaintiff's additional attorneys fees which were incurred to protect its recovery under CUTPA may properly be added to the amount of that award against all three defendants.
Concluding, as aforesaid, that the plaintiff is entitled to additional attorneys fees for hours worked by its counsel in opposing this Motion, the Court must first determine what portion of the additional fees it now seeks to recover for that purpose are recoverable on the plaintiff's successful breach-of-contract claims, as distinct from its partially successful CUTPA claim. To that end, the Court will initially assess what portion of the plaintiff's requested additional attorneys fees were incurred to preserve or enhance the plaintiff's award of attorneys fees on its successful breach-of-contract claims. All such fees must be added to Court's original award of attorneys fees. Then it will inquire as to what part of the remainder should be awarded as attorneys fees on the plaintiff's CUTPA claim.
Efforts by plaintiff's counsel to oppose the defendants' post-judgment motion to extend time to file the instant Motion are fully compensable on its successful breach-of-contract claims because, had those efforts been successful, they would have defeated this Motion in its entirety before it was even filed, thereby preserving the Court's original award of attorneys fees for breach of contract. Accordingly, the additional sum of $1,000.00 — for 2.5 hours worked in February of 2004 — must be added to the Court's original attorneys fees award for breach of contract. See Invoice Number 537462, attached to Supplemental Affidavit of Mark S. Baldwin (3/17/04).
Turning to the work performed by counsel in opposition to this Motion, from the time it was first filed on February 25, 2004 through completion of the Second Supplemental Affidavit of Mark S. Baldwin on April 15, 2004, the Court concludes that fully 95% of it was devoted to preparing and presenting written and oral arguments in support of its challenged attorneys fees award, with the remainder devoted exclusively to preserving the judgment in its favor on its CUTPA claim. On this score, the Court would note: first; that 11 pages of its 12-page Memorandum of Law In Opposition To Defendants' Motion For Reargument of Final Judgment (3/17/04) set forth arguments opposing the entire Motion generally or its challenge to the plaintiff's attorneys fees award specifically, whereas only one-half page of the Memorandum was devoted specially to the defense of its challenged CUTPA claim; second, that both its Supplemental Affidavit of Mark S. Baldwin dated March 17, 2004 and its Second Supplemental Affidavit of Mark S. Baldwin dated April 16, 2004 were drafted and filed for the exclusive purpose of opposing the plaintiff's challenge to its claim for attorneys fees; and third, that only 5 pages of the 64-page transcript of the Court's initial hearing on the Motion on April 7, 2004 were devoted to a discussion of the defendants' challenge to the plaintiff's CUTPA claim, whereas the remainder was devoted either to opposing the Motion generally on procedural grounds or opposing it specifically on its challenge to the plaintiff's attorneys fees award. Accordingly, the Court concludes that the additional sum of $10,982.00 — representing 95% of the $11,560.00 billed by plaintiff's counsel for 29.9 hours in opposition to this Motion from late February through mid-April of 2004 — must be added to the Court's original attorneys fees award for breach of contract. See Invoice Number 537462, attached to Supplemental Affidavit of Mark S. Baldwin (3/17/04); Supplemental Affidavit of Mark S. Baldwin (3/17/04), p. 1; and Second Supplemental Affidavit of Mark S. Baldwin (4/16/04), pp. 4-5.
The remaining 5% of the $11,560.00 billed by plaintiff's counsel to oppose this Motion, both orally and in writing, were incurred exclusively to preserve the judgment in its favor on the successful portion of its CUTPA claim. So incurred, such fees, totaling $578.00, must be awarded to the plaintiff against all three defendants under CUTPA.
As for the remaining fees billed by counsel to the plaintiff for post-trial services rendered in this case, the Court concludes that one portion of those fees was documented with sufficient precision to demonstrate that they were incurred to enforce the plaintiff's entire judgment herein, including its award for breach of contract, and thus that they are recoverable on the plaintiff's successful breach-of-contract claims. The fees in question, which the defendants have not challenged for their reasonableness, were incurred and billed for services performed in late January of 2004, when counsel and his associates, upon receipt of the Court's Memorandum of Decision, prepared and filed judgment liens to secure the amount of their recovery, as the Court had ordered it. Accordingly, the Court concludes that the additional sum of $5,822.19 — for 15.4 hours of attorney time, billed at $5,464.00, plus expenses of $358.19 — must be added to the Court's original attorneys fees award for breach-of-contract. See Invoice Number 493052, attached to Supplemental Affidavit of Mark S. Baldwin (3/17/04).
In sum, the Court concludes: (1) that the plaintiff is entitled, on its successful breach-of-contract claims, to an additional award of $17,804.19 in attorneys fees for post-trial services rendered by its counsel from late January through mid-April of 2004; and (2) that it is entitled, on its CUTPA claim, to an award of $578.00 in attorneys fees for that part of counsel's post-trial services which were incurred to protect its judgment against all three defendants on that claim.
IV. PLAINTIFF'S CLAIM THAT IT IS ENTITLED TO RECOVER UNDER CUTPA ALL ATTORNEYS FEES DEDUCTED FROM ITS ORIGINAL ATTORNEYS FEES AWARD FOR BREACH OF CONTRACT BECAUSE THEY WERE INCURRED SOLELY TO PROSECUTE ITS CUTPA CLAIMThe plaintiff's final claim is that, in addition to that portion of its post-trial attorneys fees which were incurred to oppose this Motion, and thus to preserve the judgment in its favor on its CUTPA claim, it is also entitled, under CUTPA, to recover all attorneys fees deducted from the Court's original award of attorneys fees because they were incurred solely to prosecute its CUTPA claim. Noting correctly that this Court declined initially to award it attorneys fees under CUTPA only to avoid a double recovery, because all of its claimed attorneys fees had already been awarded to it on its successful breach-of-contract claims, the plaintiff contends that an appropriate adjustment must now be made because some of those previously awarded fees have been disallowed.
The Court agrees with the plaintiff that, in the present circumstances, any fees deducted from its original attorneys fees award for breach of contract should be restored to the plaintiff by awarding them under CUTPA if and to the extent that they are properly awardable thereunder. For the following reasons, however, it disagrees with the plaintiff's suggestion that all fees deducted from that award because they were incurred to prosecute its CUTPA claim are, for that reason alone, automatically awardable to it under CUTPA.
It must be recalled that here, the plaintiff was only partially successful in prosecuting its CUTPA claim. In fact, it only prevailed on one of the five specifications of misconduct described in its Complaint. Such specifications of misconduct, moreover, were not alternative characterizations of a single, allegedly unfair or deceptive act or practice. Instead, they were a series of distinct and different acts or practices, each occurring in a different time frame and allegedly causing separate losses. In short, they were so pleaded and presented that success on any one of them did not betoken success on any of the others. Hence any award of attorneys fees for services rendered in prosecuting the plaintiff's CUTPA claim must be reduced to 20% of total fees incurred to reflect the true measure of the plaintiff's success on that claim.
Examining all deductions taken by the Court from its original award of attorneys fees for fees incurred solely to prosecute the plaintiff's Levin claims and/or CUTPA claim (totaling $14,217.33), the Court finds that approximately two-thirds of them (valued at $9,478.22) were incurred solely to prosecute the plaintiff's Levin claims, while the remaining one-third (valued at $4,739.11) incurred solely on the plaintiff's CUTPA claim. Reducing the latter portion of the deducted fees by 80% to account for the plaintiff's failure to prevail at trial on four of the five separate specifications of misconduct set forth in his CUTPA claim, the Court finds that the plaintiff is entitled to an additional award of $947.82 in attorneys fees under his CUTPA claim. Because, however, this award results only from the Court's decision on this Motion to deduct that same amount from the plaintiff's original award of attorneys fees on its successful breach-of-contract claims, the award will only be entered against those defendants against which the original award was entered, to wit: Plymouth Commons and Terryville Holding.
V. CONCLUSION
For all of the foregoing reasons, together with the reasons set forth on the record in open court on April 7, 2004, the Court hereby ORDERS that the judgment in this case be modified by making the following adjustments to the defendants' obligations to pay the plaintiff attorneys fees in this case:
1. That, pursuant to the granting of the first part of the defendants' Motion For Reargument, the sum of $14,217.33 is hereby deducted from the Court's original award of $171,020.26 in attorneys fees, on the plaintiff's claims of breach of contract against defendants Plymouth Commons and Terryville Holding only, to account for all previously awarded fees which were incurred solely for the prosecution of the plaintiff's Levin claims and CUTPA claim;
2. That the plaintiff is hereby awarded, on its claims of breach of contract against defendants Plymouth Commons and Terryville Holding, additional attorneys fees of $17,804.19 for post-trial services rendered by its counsel from late January through mid-April of 2004
3. That, pursuant to the granting of the second part of the defendants' Motion For Reagument, defendants Plymouth Commons and Terryville Holding are hereby granted full credit against the Court's original award of attorneys fees for breach of contract, as modified by this Order, for all $24,113.00 in attorneys fees they previously paid to the plaintiff as pretrial sanctions for discovery misconduct in this case;
4. That, in consequence of the adjustments described in paragraphs 1-3 above, the plaintiff shall recover, on its claims of breach of contract against defendants Plymouth Commons and Terryville Holding, the net additional sum of $150,494.12, exclusive of and in addition to the $24,113.00 they previously paid to the plaintiff as sanctions for discovery misconduct in this case;
5. That in addition to the foregoing, the plaintiff is hereby awarded, on its claim under CUTPA against defendants Plymouth Commons, Terryville Holding and Louis Ursini, attorneys fees of $578.00 for post-trial services rendered by its counsel from late January through mid-April of 2004;
6. That the plaintiff is hereby awarded, on its claim under CUTPA against defendants Plymouth Commons and Terryville Holding only, additional attorneys fees of $947.82 for sums awardable to it under CUTPA which were deducted by this Order from the Court's original award of attorneys fees for breach of contract because they were incurred solely to prosecute the plaintiff's CUTPA claim;
7. That, in consequence of the adjustments described in paragraphs 5-6 above, the plaintiff shall recover: (a) as attorneys fees on its CUTPA claim against defendants Plymouth Commons and Terryville Holding only, the sum of $1,525.82; and (b) as attorneys fees on its CUTPA claim against defendant Louis Ursini, the sum of $578; and
8. That, upon the denial of the third part of the defendants' Motion For Reargument, all other parts of the Court's original judgment, as reflected in its Memorandum of Decision, shall remain the same.
IT IS SO ORDERED this 28th day of July 2004.
Michael R. Sheldon, J.