Juda J. Epstein v. Dorothy A. Smulley (2010)

MEMORANDUM OF DECISION

The plaintiff in this case is an attorney who is attempting to collect fees from a former client.   The action was first brought as a small claims matter, but was transferred to the regular docket pursuant to Practice Book § 24-21 on the defendant's motion.   The defendant has filed an answer denying the allegations of the complaint and asserting a special defense claiming that the plaintiff, in his representation of the defendant, breached an implied covenant of good faith and fair dealing.   The answer also sets forth four counterclaims.   The first count of the counterclaim alleges a breach of contract.   The second count alleges breach of the implied covenant of good faith and fair dealing.   The third count alleges professional malpractice.   The fourth count alleging CUTPA violations was struck by the court, (Tobin, J.) on December 16, 2008.

The plaintiff filed a motion for summary judgment on February 17, 2009 seeking summary judgment as to each of the defendant's three remaining counterclaims.   However, the plaintiff did not pursue that motion diligently and it was not heard on short calendar until January 19, 2010.¹  In the meanwhile, jury trial, commencing January 27, 2010, has been scheduled.

In his memorandum filed in support of his motion for summary judgment as to the remaining counterclaims, the plaintiff claims that in December 2005, the defendant retained him to act as her attorney in connection with an action filed against her by the Oronoque Shores Condominium Association.   In that action, the Association sought to foreclose a lien for delinquent assessments and charges.   The plaintiff claims that the action was settled by a stipulation entered into by the parties in open court on May 8, 2007.   A copy of the transcript of the settlement was attached to the plaintiff's memorandum.   In the transcript the plaintiff, acting as the defendant's attorney recited that the defendant would agree to pay the Association $5,700 “inclusive of all fees, costs, monies due and owing including the month of May ․” The Association's counsel concurred with this statement.   Payment of the $5,700 was to be made within thirty days of the hearing.   The court (Matasavage, J.) canvassed the defendant as to the terms of the settlement and was satisfied that she understood and agreed to them.   The plaintiff's affidavit filed in support of his motion for summary judgment states that after the stipulation for settlement in open court, the defendant “actively participated in the drafting of (a written agreement reflecting the terms of the settlement) in the form of a Motion for Order and Agreement of the Parties.”

The plaintiff's affidavit does not state whether the settlement agreement was ever signed or whether the defendant ever made payment to the Association in accordance with the settlement stipulation.   The affidavit is silent as to when the plaintiff ceased representing the defendant and under what circumstances.   Paragraph 16 of the plaintiff's affidavit states:  “After the entry of judgment in accordance with the parties' stipulation, Oronoque Shores filed a Bill of Costs pursuant to Connecticut Practice Book § 18-5.   Oronoque Shores was under no obligation of which I am aware to forego its right to do so.”

The defendant's objection to the plaintiff's motion for summary judgment claims that the plaintiff did not keep her informed as to amount of legal fees she was incurring in the connection with her defense of the Association's claims.   Specifically, she claims that after paying a retainer of $2,500 she was not billed for the plaintiff's time until the day prior to the May 8, 2007 court hearing, when the plaintiff orally requested her to bring an additional retainer of $2,500 to court the following day.   She claims that although the plaintiff told her the additional amount would “cover the matter,” she was subsequently billed an additional $10,000 for the plaintiff's professional services.   The defendant claims that she was coerced by the plaintiff into entering into the settlement stipulation on May 8, 2007.   She claims that the plaintiff failed to advise her that the Association might seek to obtain an award of costs in addition to the $5,700 she was to pay under the settlement stipulation.   She claims that when counsel for the Association filed a bill of costs seeking $1,844.45, the plaintiff failed to advise her of the filing or to oppose request for costs in light of the statement on the record that the payment of $5,700 by the plaintiff would be “inclusive of all fees, costs ․”

The defendant's affidavit states that she discharged the plaintiff on July 16, 2007 and proceeded to trial with new counsel.   Attached to the defendant's objection is a copy of a memorandum of decision in the foreclosure case brought by the Association against the defendant dated April 10, 2008.   In that decision the court found that the defendant owed the Association $6,934.07 as of April 29, 2008 and, in addition awarded the Association $12,000.00 in attorneys fees.

“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  Provencher v. Enfield, 284 Conn. 772, 790-91 (2007).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ Once the moving party has met its burden however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  Zielinski v. Kotsoris, 279 Conn. 312, 318-19 (2006).   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Rivers v. New Britain, 288 Conn. 1, 10 (2008).

“In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500 (1988).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast Inc., 285 Conn. 1, 10-11 (2008).

“The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Id., 11.

In arguing that no material issue of fact exists, the plaintiff focuses entirely on his prospective of the dispute.   It is evident that he views the case as nothing more than an honest attempt to collect a fee which he is justly owed.   After a trial it may well turn out that the finders of fact agree with the plaintiff and find the issues for him.   However, the court is far from satisfied that no issues of material fact exist.   If the defendant's affidavit is credited, the plaintiff not only failed to keep her informed to amount of legal fees she had incurred, but made statements to her regarding his fees, which she relied on in accepting the settlement stipulation, which were false and misleading.

In addition, the court is faced with the plaintiff's statement on the record at the hearing on the settlement stipulation that the payment of $5,700 by the plaintiff would be “inclusive of all fees, costs, monies due and owing including the month of May ․” It is impossible to reconcile this statement with paragraph 16 of the plaintiff's affidavit stating that he was aware of no obligation which the Association had to forego an award of costs.

Each of the defendants remaining counterclaims implicates the plaintiff's professional performance.   The existence of issues of material facts preclude the granting of the plaintiff's motion for summary judgment.   The plaintiff's motion for summary judgment with respect to the defendant's counterclaims is accordingly denied.

David R. Tobin

FOOTNOTES

FN1. The defendant filed a timely motion for an extension of time to file an opposition to the motion for summary judgment. (# 124.00) The court (Bellis, J.) granted an extension to May 29, 2009.   On May 14, 2009 the defendant sought and obtained an additional extension of time to file an opposition to the motion for summary judgment based on the need to take the plaintiff's deposition. (# 127.00) The court (Rush, JTR) granted an extension to July 31, 2009.   On August 3, 2009, the defendant sought an additional extension of time to oppose the motion for summary judgment based on the defendant's inability to obtain the plaintiff's appearance at a deposition. (# 128.00) This motion was never acted on by the court.   The defendant's opposition to the motion for summary judgment was finally filed on November 18, 2009 without apparent objection from the plaintiff..  FN1. The defendant filed a timely motion for an extension of time to file an opposition to the motion for summary judgment. (# 124.00) The court (Bellis, J.) granted an extension to May 29, 2009.   On May 14, 2009 the defendant sought and obtained an additional extension of time to file an opposition to the motion for summary judgment based on the need to take the plaintiff's deposition. (# 127.00) The court (Rush, JTR) granted an extension to July 31, 2009.   On August 3, 2009, the defendant sought an additional extension of time to oppose the motion for summary judgment based on the defendant's inability to obtain the plaintiff's appearance at a deposition. (# 128.00) This motion was never acted on by the court.   The defendant's opposition to the motion for summary judgment was finally filed on November 18, 2009 without apparent objection from the plaintiff.

Tobin, David R., J.