William J. Gagne, Jr. v. Enrico Vaccaro (2010)

MEMORANDUM OF DECISION AFTER APPELLATE COURT REMAND

STATEMENT OF THE CASE

On December 8, 2009, in Gagne v. Vaccaro, AC 30427, the Appellate Court found in favor of the plaintiff (appellee) and concluded he was entitled to the attorney's appellate fees awarded by this court.   The matter was remanded and the court was directed to conduct an evidentiary hearing only as to the reasonableness of the fees.   The judgment was affirmed in all other respects.

The court assigned the matter for a hearing pursuant to the remand on March 23, 2010 at which time the defendant filed an objection to the plaintiff's motion for appellate attorneys fees and an objection to the plaintiff's motion for further appellate attorneys fees.

The first objection appears to be in complete disregard of the Appellate Court decision and remand order and must be overruled.

The second objection alleges that the plaintiff did not prevail on the appeal and thus “has not legal entitlement to an award of additional attorneys fees.”   This refers to the request for attorneys fees for the third appeal.

This objection also repeats claims previously rejected on appeal and must be overruled.

DISCUSSION

I

The fees for which the Appellate Court ordered the hearing are for the defendant's second unsuccessful appeal.   The Court heard the parties on March 23, 2010.   The defendant had intensive cross-examination of the attorney whose affidavit covered their fees.

The court denied the defendant's attempt to use a subpoena to examine the law firm's records, litigation history, etc.

After hearing Attorney Ventre and examining his affidavit and having presided over most of this litigation, the court concludes the request as presented should be granted.   The court finds the sum of $16,980 for 84.90 hours at $200 per hour represents reasonable compensation for the work represented.

II

The plaintiff was obligated to defend the third appeal and seeks to recover for 49.3 hours at $200 per hour, or $9,860.   An expenditure of $33.39 would appear to be a taxable cost item.

The file record of the plaintiff's attempt to collect this amount and the defendant's response is pertinent, particularly in view of the defendant's last minute filing of objections.

On December 22, 2009, the plaintiff filed a motion for appellate attorneys fees for the third appeal and on December 28, 2009 moved that this matter be heard at the hearing on the fees for the second appeal (see Section I, supra.)

The defendant filed no objection nor response and on January 8, 2010 the unopposed motion was granted (Abrams, J.).   In fact, the defendant did not object to the third appeal fees until March 23, 2010, despite his having requested continuances to hearing dates set by the court.

The court is inclined to overrule the objection as untimely, but that would seem to be an invitation to the defendant to create still another appeal without having the “merits” of his objection exposed to review.

In the first of five objections, the defendant questions this Court's hearing the plaintiff's motion for further appellate fees because it was not included in the Appellate Court's remand.   Of course, it could not have been because the additional fees had not yet been awarded.   And, the only forum to entertain such a motion is this one-as noted by the Appellate Court in its decision.   This claim is totally without merit.

Objection number two states that the plaintiff did not prevail on the appeal.   In its decision, the Appellate Court heard the defendant's claim that the plaintiff was not entitled to an award of appellate fees.   The court concluded he was and entered the remand order for the sole purpose of having a determination as to the reasonableness of the fees.   That court concluded with “the judgment is affirmed in all other respects.”

The defendant's third objection was addressed in prior proceedings at the appellate level.   He did not prevail then and there is no reason for this court to assume an appellate role and/or reconsider it now.

In a fourth objection, the defendant merely states the fees claimed are not reasonable.   The hourly rate charged for this litigation is reasonable and actually could easily demand a higher rate in this era of three hundred dollars and higher rates per hour.   As for the time consumed, the Court has heard most of this dispute and as noted above, the defendant is prone to repeating prior claims.   The plaintiff cannot be expected to do a less than thorough job in view of the case history and the defendant's penchant for appellate review.

In his last objection, the defendant asks the court to deny further fee requests by “the application of equitable principles.”

He overlooks the extensive litigation he conducted, including the appellate process, created in part by an apparent refusal to accept any decision as final and binding on him.

This objection also lacks merit and the court concludes that a further award of $9,860.00 is fair and reasonable.   This award includes the hourly rate of $200 for 49.3 hours, both of which the court finds to be reasonable.

III

The court has been advised via the plaintiff's motion for fees that the defendant has not yet paid costs taxed against him in prior proceedings, though the parties agreed on the amount to be paid.

The sum of $522.60 is ordered to be paid forthwith.

IV

A.

Legal interest of 10% on any unpaid portion of the fee awarded for the second appeal shall commence 30 days from the date of this decision.

B.

Legal interest of 10% on any unpaid portion of the fee awarded for the third appeal shall commence 60 days from the date of this decision.

V

The plaintiff is awarded taxable costs which shall be paid within 20 days of this decision.

Anthony V. DeMayo, J.T.R.

DeMayo, Anthony V., J.T.R.