Opinion
No. FST CV 04 400 1719 S
July 17, 2008
MEMORANDUM OF DECISION ON REQUEST FOR COUNSEL FEES
This is a continuation of the Mun v. Doria saga. The plaintiff moved for counsel fees before Tobin, J. who awarded $2,000.00 in foreclosure fees and referred the case back to the trial judge for a decision on extra counsel fees allegedly incurred in connection with the trial of this matter. The plaintiff asks for $133,197.00 for trial and $14,425.00 for the appeal, to date.
The parties met as scheduled for hearings on (1) a motion to terminate the appellate stay; and (2) more extensive counsel fees. Because plaintiff's lead attorney was not available, and defendant's prior counsel indicated he may want to examine him, the court agreed to go forward only on the appellate stay issue, and postponed the hearing for counsel fees until June 17, 2008. At that time, the plaintiff's attorney offered his firm's billing records, under oath, as an exhibit and also took the stand to testify to the reasonableness of the work done and the charges made. The postponement was granted to provide the defendant's counsel with a full and fair opportunity to examine the records, to cross examine plaintiff's counsel and to put on evidence, if he so desired.
Defendant's present counsel is his third counsel before this particular court.
I.
Smith v. Snyder, 267 Conn. 456, 839 A.2d 589 (2004), holds that "to support an award of attorneys fees, there must be a clearly stated and described factual predicate for the fees sought . . ." but that court cautioned: ". . . we have been careful not to limit the contours of what particular showing may suffice . . ." (Emphasis added.) Smith v. Snyder, supra, 267 Conn. 477.
The trial court possessed documentary evidence and can base its award on that evidence in addition to its general knowledge of what constitutes a reasonable attorneys fee. Id., 474. "[T]he [trial] court [is] in a position to evaluate the complexity of the issues presented and the skill with which counsel . . . dealt with these issues." (Internal quotation marks omitted.) Id., 478. This court is satisfied that the factual predicate in this case meets the requirements of Smith.
Defendant's present counsel argues that the plaintiff's counsel's testimony was insufficient to determine the question of the reasonableness of the billing. He also argued that an independent expert should have been called for that purpose.
In Smith v. Snyder, supra, the Supreme Court also directly cited with approval its previous decision in Piantedosi v. Floridia, 186 Conn. 275, 279, 440 A.2d 977 (1982), for its conclusion that "a party need not present expert testimony regarding attorneys fees." Smith v. Snyder, supra, 267 Conn. 473. In Piantedosi, the court specifically stated that "[n]ot only is expert testimony [regarding the reasonableness of attorneys fees] not required, but such evidence, if offered, is not binding on the court." Piantedosi v. Floridia, supra, 186 Conn. 279. The court also affirmed its previous holding that "courts have a general knowledge of what would be reasonable compensation for services which are fairly stated and described." (Internal quotation marks omitted.) Id.
Plaintiff's lead counsel, Mr. Bowman, is an attorney of many years experience and considerable ability in foreclosure and other litigation. Both his sworn billing sheets and his testimony supported the reasonableness of the work and the bills. As lead counsel, he was in control of the plaintiff's side of the litigation. His billing statement and his testimony described the services his firm performed for the plaintiff and attested to the reasonableness of the work done and of the fees charged. The court finds him to be a competent and reliable counsel. The court cannot ignore its own knowledge of his performance in this case — which he won — or of his capabilities. If anyone can testify intelligently as to the reasonableness of the work or the charges, it is he. The fact that he was plaintiff's counsel goes to the weight of the evidence, not its admissibility.
Although the law does not require it, the defendant had the opportunity to put an expert witness on the stand on the question of reasonableness. Moreover, he had the opportunity to cross examine counsel at considerable length. In lieu of those things, he argued that counsel's testimony was insufficient to allow the court to determine reasonableness, and that an independent expert was needed.
In support of his argument on the reasonableness of the fees, the defendant's counsel cited Barco Auto Leasing Corp. v. House, CT Page 11869 202 Conn. 106, 121, 520 A.2d 162 (1987). Barco is not on point. In that case, the records were not in evidence, as they were here, and there was no chance to litigate reasonableness, as there was here. Not only were the time sheets in evidence in this case, but the opportunity to question them and examine plaintiff's counsel on the question of the reasonableness of the bills, as well as the opportunity to present additional evidence, was fully available.
Smith v. Snyder, supra, 267 Conn. 479, states that the proponent of a claim for attorneys fees must present to the court "a statement of the fees requested and a description of the services rendered." Id. Clearly, this requirement has been met. Bowman's testimony afforded the opposing party the opportunity to challenge the amount requested. Just as clearly, Smith v. Snyder, supra, "does not limit the trial court's ability to assess the reasonableness of the fees requested using any number of factors, including its general knowledge of the case, sworn affidavits or other testimony, itemized bills, and the like. [T]he value of [reasonable attorneys fees] is based upon many considerations." (Internal quotation marks omitted.) Id., 480. After the factual predicate is set forth, "the court may apply its knowledge and experience in determining the reasonableness of the fees requested." Id.
At one point, the court reopened the testimony and questioned Mr. Bowman itself. Counsel objected and reobjected to this procedure, stating that the testimony was closed. The court's function is to get at the truth. This the court tried to do by reopening the trial testimony and questioning Mr. Bowman. The court maintained its position of neutrality between the parties. But the court is the sole trier and surely has the right to pursue the truth whenever and wherever it leads. Our Supreme Court, as indicated above, has not limited the trial court's ability to assess the reasonableness of the fees requested. Smith v. Snyder, supra, 267 Conn. 480.
II.
The court has reviewed the Rules of Professional Conduct, in particular § 1.5. It has also reviewed a large number of counsel fee cases, including federal cases on the subject. They have illuminated the many factors that need to be considered in determining the reasonableness of fees for the distinct purpose of constructing a court order. In considering the time and labor required to prepare for and try this case, the court notes that the basic case is not novel or difficult. It was the defendant's special defense of fraud and his counterclaim which complicated an otherwise run of the mill case. While no specialized skill was required, the plaintiff's counsel competently handled the case, as the results revealed. The amount involved in the litigation was very large as were the "high end" counsel fees. The court also considered its knowledge of fees charged in this locality for similar services, and also considered questions such as the necessity and possible duplication of efforts made to prepare for trial. The preparation was extensive; indeed prodigious. There was also evidence that most of the fees were paid, which is some evidence that the client felt the fees were reasonable.
There was no evidence offered that the case caused a loss of other employment. Nor was there any indication that counsel labored under client imposed time limitations. There was also no evidence of the desirability of handling the case or the length of the relationship with the client.
There are some other items to consider. The court notes that plaintiff's counsel, in speaking on the record to Tobin, J. at the foreclosure short calendar on February 25, 2008, stated: "You'll see in a minute, why it's somewhat academic here . . . I am [looking for strict foreclosure]. There's no equity, even with no attorneys fees." Presumably, counsel meant that the amount owed exceeds what the plaintiff can secure from foreclosure, thus making attorneys fees "academic."
Defendant's former counsel, Mr. Lerner, essentially confirmed this economic situation. See Transcript of May 12, 2008, pp. 12-16.
The court also notes that at least one hearing could have been avoided — since counsel was reported unavailable on May 13, 2008. No motion was made to postpone the hearing. Since defendant's counsel said he may want the opportunity to examine Mr. Bowman — as is his right — the court heard another motion but had to continue the hearing on fees to June 17, 2008. Moreover, there was also a premature motion to terminate the appellate stay which the court could not decide directly because there was no final judgment; a prerequisite for the appeal in question.
III
The defendant asserted a special defense of fraud and a counterclaim. The court's research uncovered two cases in Connecticut, Bell Tower Condominium Ass'n., Inc. v. Muhammad, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 97 0347431 (July 25, 2000, Mottolese, J.) (27 Conn. L. Rptr. 600), and Connecticut National Bank v. Brown, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 90 0107084 (August 14, 1992, Mottolese, J.), which raise another issue. Both cases refer to the case of Markt v. Ro-Mart, Inc., 471 F.Sup. 1292 (N.D.Cal. 1979). That case holds that public policy concerns should influence the court's award of counsel fees. Id., 1299. In our jurisdiction, the defendant in a foreclosure action may bear the costs of both sides of the litigation. Markt v. Ro-Mart, Inc., supra, expresses the danger that the defendant may be reluctant to raise a meritorious defense since he may fear that if he loses he will have to pay not only his own cost of defense, but the plaintiff's costs as well. Id. Markt holds that contractual provisions for attorneys fees present the defendant with a serious dilemma: on the one hand, he should pursue all defenses reasonably available with appropriate vigor. Id. On the other hand, he risks losing far more than he bargained for if he loses the case since in addition to damages, he may have to pay for counsel fees and expenses incurred in refuting the defendant's own arguments. Id. The District Court found this dilemma "inequitable." It felt the court must strike a balance between the utility of fee clauses in preventing frivolous and dilatory tactics and the disutility these clauses serve when they discourage or may discourage the bringing of a possibly meritorious defense. Markt v. Ro-Mart, Inc., supra, 1299. The court felt it must read into the fees clause an exception to liability when the fees were incurred in opposing a reasonable, good faith defense. Id.
While neither Bell Tower Condominium nor Connecticut National Bank was willing to read such a blanket exception into our statute, in each case the court did feel it was appropriate to make some reduction by using a balancing test between the statutory purpose of encouraging contractual compliance and timely payment on the one hand, while discouraging the use of good faith defenses and counterclaims on the other.
This court agrees with these cases, and this is one more matter it has considered.
IV.
Connecticut General Statutes § 49-7 states that "the court may determine the amounts to be allowed for . . . attorneys fees, even though the agreement may specify a larger sum." It is no secret that the statutory reference to the gap between the fees charged and the amount the court feels is reasonable for the purposes of constructing a formal court order for repayment is very often seen in reported Connecticut cases. Nor is this surprising in "high end" fee cases, since there are reputable firms that operate at somewhat lower numbers. The court finds that the gap exists here, since the fees charged are in fact quite high. That does not mean that the court is critical of the plaintiff's counsel fees. When counsel bill, they do not have to go through the painstaking analysis imposed by the law on the courts. It only means that for the purposes of constructing a court order — considering all the things in the statutory and case law — the court cannot reimburse the same amount the plaintiff's counsel billed.
Case law gives the court the right to examine each item, or in the alternative, to use a percentage cut on the question of what can be reimbursed by court order. The court has the discretion to deduct a reasonable percentage of the number of hours claimed as a practical means of trimming an especially high fee application, as it finds here. See Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998); Bristol Technology, Inc. v. Microsoft Corp., 127 F.Sup.2d 64 (D.Conn. 2000).
The court has considered all the evidence in the case, including the submitted time sheets and counsel's fee testimony, and has evaluated the arguments of the parties. It has to the best of its ability weighed and balanced all factors and circumstances in the cases in general and addressed in this opinion, including the work performed against the background of the requirements of the case.
Accordingly, the sum of $65,000.00 is awarded to the plaintiff in response to his motion for counsel fees.