Opinion
Nos. CV 08 4008700, CV 09 4009454, CV 09 4009133
September 22, 2010
MEMORANDUM OF DECISION RE ATTORNEYS FEE
I. Background
This matter originated by an action for the construction of the last will and testament of Doctor John P. Bigos returnable July 29, 2008. The suit was brought by the co-executors of the estate, Edward Stambovsky and Kathleen DeMartino (herein Plaintiffs) naming Susan Norz, guardian of the estate of Patricia Lilian Bigos, a Minor, and Thomas Cloutier, Esq., Guardian Ad Litem as defendants.
Thereafter, during the pendency of the construction case the plaintiff also initiated two separate appeals from the actions of the Probate Court for the district of East Lyme in the said estate.
After various interlocutory pleadings and rulings in the several matters the parties reached an agreement which was read into the record of the proceedings on July 8, 2010. Under the terms of that agreement it was left for the court to determine the appropriate attorneys fee for the plaintiff's attorney to recover from the estate for the representation of the plaintiffs in the three separate matters.
A hearing was held with respect to the plaintiffs motion in that regard in this court on September 14, 2010, at New London. Thomas Cloutier, Esq. appeared on his own behalf. The other parties were well represented by counsel. Evidence was presented in addition to the affidavit (Plaintiff's Ex. 1) and other exhibits. At the conclusion of evidence the parties presented oral argument with respect to their respective positions.
II. Findings of Fact CT Page 18652
From the evidence presented, including reasonable and logical inferences from the same, and taking into account the court's evaluation of the credibility of the witnesses, the following facts relevant to the decision are found. Other facts may be stated separately as necessary.
Prior to the death of Dr. Bigos there had been a "high conflict" divorce action between the doctor and Susan Norz resulting in a judgment of divorce. The minor child of that marriage, Patricia Lilian Bigos, who is now 7 years old, presently lives with her mother who is her guardian. There were several post-judgment matters in dispute after the divorce. Some of these involved personal property. These matters could not be resolved in that case after the death of Dr. Bigos.
The minor child was the sole beneficiary of the estate of Dr. Bigos. The co-executors were his friend and accountant and his sister. It had been their view that there was a dispute in the Probate Court as to the provisions of the will which purported to give them complete discretion in dealing with the personal property. During the time this case was pending and after Judge Martin had granted a stay of the probate proceeding, the Probate Court nevertheless is alleged to have entered orders relating to matters which could have effected the outcome of this matter. The plaintiffs then considered that the law required them to appeal from those orders in the two separate actions which followed.
During the hearing Attorney Gostyla testified and it is found that he and other members of his firm provided the legal services to the plaintiffs for which an award of attorneys fees is sought.
Attorney Gostyla was vigorously cross-examined with respect to the affidavit filed and various of the entries relating to time and necessity. It is found that the appraised value of the personal property at issue in this proceeding and concerning which the agreement was reached was $18,270. (Def's Ex C D.) The plaintiffs, however, claim that there is also sentimental value above the dollar amount.
There has been considerable emotion involved in the handling of this matter. The file is voluminous. Three volumes are required in the clerk's file for the construction matter alone. However, the case did not involve complex legal or factual issues.
The total claim for legal fees and expenses is $102,562.66 (Pl's Ex 2).The claim that has been made has not separated out the three matters. No fee agreement was presented to the court.
Attorney Gostyla's hourly rate charged was $300. Lesser amounts were charged for associates and other staff. These rates are not at variance with charges by other experienced attorneys in the area for similar matters. Attorney Gostyla is a competent, experienced member of the bar having graduated from law school and been admitted to the bar in 1994. He has been a partner in his law firm since 2004. He is experienced in handling litigation matters.
The defendants did not object to the hourly rate, but rather the time involved and the relationship of the claimed fee to the value of the items in dispute. For example, Attorney Gostyla's affidavit indicates that 3.3 hours of his time were expended for preparing four motions for default. Also the examination of the attorney questioned whether it was reasonable for him to charge his hourly rate to personally hand-deliver various filings with the New London clerk's office when his office was in Hartford about an hour away. An extraordinary amount of time was expended on research for a case which did not involve complex legal issues.
III. The Law
Our Supreme Court long ago explained that an attorney is entitled to a reasonable fee for his services. "An attorney at law is an officer of the court; a minister of justice. He is entitled to fair compensation for his services."
"It is well established that a trial court calculating a reasonable attorneys fee makes its determination while considering the factors set forth under rule 1.5 (a) of the Rules of Professional Conduct . . . These factors include the time and labor spent by the attorneys, the novelty and complexity of the legal issues, fees customarily charged in the same locality for similar services, the lawyer's experience and ability, relevant time limitations, the magnitude of the case and the results obtained, the nature and length of the lawyer-client relationship, and whether the fee is fixed or contingent . . . When awarding attorneys fees, the court must consider all of the factors and not seize on one to the exclusion of the others." (Citations omitted; internal quotation marks omitted.) Rodriguez v. Ancona, CT Page 18654 88 Conn.App. 193, 202, 868 A.2d 807 (2005); Altschuler v. Mingrove, 98 Conn.App. 777 (2006).
"It is axiomatic, however, that the determination of reasonableness of attorney's fees appropriately takes into consideration a range of factors, among which the time and labor expended is but one consideration. See O'Brien v. Seyer, 183 Conn. 199, 206, 439 A.2d 292 (1981) (factors properly considered in determining reasonable compensation to attorney summarized in Code of Professional Responsibility, now rule 1.5 of the Rules of Professional Conduct); Steiger v. J.S. Builders, Inc., 39 Conn.App. 32, 38-39, 663 A.2d 432 (1995) (adopting list of factors to be considered by trial court if it determines plaintiff is entitled to attorneys fees, costs in unfair trade practices litigation)." Esposito v. Esposito, 71 Conn.App. 744 (2002).
"[T]he initial estimate of a reasonable attorneys fee is properly calculated by multiplying the number of hours reasonably expended on a litigation times a reasonable hourly rate . . . The courts may then adjust his lodestar calculation by other factors." (Internal quotation marks omitted.) Ernst v. Deere Co., 92 Conn.App. 572, 576, 886 A.2d 845 (2005) . . ." Land Group, Inc. v. Palmieri, 123 Conn.App. 84 (2010).
"The determination of reasonableness, however, takes into consideration a range of factors, of which time and labor expended are one consideration. See id.; Tufano v. Tufano, 18 Conn.App. 119, 125, 556 A.2d 1036 (1989).
"It was within the discretion of the court to determine whether the effort expended was reasonable under the circumstances and to rely on its familiarity and expertise with the complex legal issues involved to determine the reasonableness of the attorneys fees." Gina M.G. v. William C., 77 Conn.App. 582 (2003).
"The court, however, must take into account other factors. One is the degree of success obtained." "When a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief . . . the only reasonable fee is usually no fee at all." (Citation omitted.) Farrar v. Hobby, 506 U.S. 103, 115, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). The court "is obligated to give primary consideration to the amount of damages awarded as compared to the amount sought." (Internal quotation marks omitted.) Id., 114. Perez v. DL Tractor School, 117 Conn.App. 680 (2009).
"Second, to the extent that the plaintiff argues that the court did not sufficiently explain the weight it gave to particular factors, we know of no law, nor has the plaintiff cited any, that requires the court to ascribe to any of the factors a particular weight." Commission of Human Rights Opportunities v. Brookstone Court. L.L.C., 107 Conn.App. 340 (2008).
IV. Conclusion
The court has given consideration to the hours claimed to have been expended, the expenses stated and the rates of hourly fees of the various participants in the legal services provided to the plaintiffs. But, the court also considers the relevant factors set forth in Rule 1.5, Rules of Professional Conduct and has given consideration to its own knowledge as to fees for legal services and the reasonableness of the same under these circumstances.
The issues in this case were not particularly novel, nor were the questions difficult. The major consideration relates to the amount involved in the dispute which also relates to the results obtained.
Here the request for a fee of over $102,000 for handling a dispute over $18,270 worth of personal property is considered unreasonable. That expenditure of time under those circumstances simply is not warranted.
Another consideration taken into account by the court relates to the reasonableness of the time charged by counsel for the various items listed. Without attempting to be exhaustive, it should suffice to indicate that the charge of over three hours at $300 per hour to complete four motions for default is not reasonable. The extensive research charges do not appear to have been warranted by the complexities of the issues. The hand-delivery of various filings in New London by a Hartford lawyer charging $300 an hour also is unwarranted.
Giving consideration to the claimed hours expended, the rates charged, the amount in controversy, the lack of complexity, the degree of difficulty and the other factors, including the court's own knowledge as to the reasonableness of the fees under the circumstances here, the court determines the Co-executors legal fees, cost and expenses for the three cases to be fifty thousand ($50,000.00) dollars.
IT IS SO ORDERED.