Mary Margaret Farren v. J. Michael Farren (2010)

MEMORANDUM OF DECISION RE ATTORNEY FEE AWARD

BACKGROUND

The instant action was scheduled for a hearing concerning the entering of a prejudgment remedy.   The court, Judge Adams, entered an ex parte prejudgment remedy for the plaintiff on January 20, 2010.   The defendant filed a motion to amend the prejudgment remedy and a hearing was scheduled for March 22, 2010.   Prior to the hearing, counsel for the defendant served the employer of the plaintiff with a subpoena duces tecum for records of Skadden, Arps, Slate, Meagher, and Flom, LLC seeking the dates of plaintiff's employment, dates of her use of various leave benefits provided through the employer, her wage history, and all written policies, procedures, manuals or other documents regarding employee short-term and/or long-term disability benefits.

As a part of the subpoena, defense counsel included a statement that:  “This subpoena may be satisfied by forwarding certified copies of the requested documents to the law offices of Moynahan and Minnella, LLC, 141 East Main Street, Waterbury, Ct ․”

As a result of the instructions in the subpoena and discussions with defense counsel, employment records were sent directly to the counsel for the defendant.   The plaintiff did not have the opportunity to view the records as they were brought to the court because the employer was excused from appearing in response to the subpoena by defense counsel.   All of the records were sealed by defense counsel and delivered to the court as a result of the motion for sanctions filed by the plaintiff concerning these records and defense counsel's actions.

This court heard argument of the parties and ruled that the defendant's request on the subpoena and thereafter receipt of the documents by defense counsel outside of the scope of the subpoena power was improper.

This court did not sanction the defendant's counsel as requested by the plaintiff by precluding introduction of the documents into testimony or evidence or ordering the return of the documents immediately.   However, the court did permit counsel to argue that a sanction of attorney fees for the motion and memorandum should be awarded.   Counsel for the plaintiff submitted an affidavit and counsel for the defendant has submitted a memorandum in opposition to the award of attorney fees.   The plaintiff has also submitted a reply brief in support of their request for attorney fees.

DISCUSSION

The Supreme Court has remarked that “[a] court has few duties of a more delicate nature than that of fixing counsel fees.”  (Internal quotation marks omitted.)  Schoonmaker v. Lawrence Brunch, Inc., 265 Conn. 210, 258 (2003).   This court must address that delicate task.

“The amount of attorneys fees to be awarded rests in the sound discretion of the trial court and will not be disturbed on appeal unless the trial court has abused its discretion ․ Sound discretion, by definition, means a discretion that is not exercised arbitrarily or willfully, but with regard to what is right and equitable under the circumstances and the law ․ Judicial discretion is always a legal discretion, exercised according to the recognized principles of equity.   The trial court's discretion imports something more than leeway in decision making and should be exercised in conformity with the spirit of the law and should not impede or defeat the ends of substantial justice.”   (Citation omitted;  internal quotation marks omitted.)  Rodriquez v. Ancona, 88 Conn.App. 193, 201-02, 868 A.2d 807 (2005).

“It is axiomatic that the determination of reasonableness of attorney's fees appropriately takes into consideration a range of factors.   It is well established that a trial court calculating reasonable attorneys fees 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 attorney fees, the court must consider all of the factors and not seize on one to the exclusion of others.”  (Citation omitted;  internal quotation marks omitted.)  Rodriguez v. Ancona, supra, 201-02.

“We have long held that there is an undisputed requirement that the reasonableness of attorneys fees and costs must be proven by an appropriate evidentiary showing ․ We have also noted that courts have a general knowledge of what would be reasonable compensation for services which are fairly stated and described ․ and that courts may rely on their general knowledge of what has occurred at the proceeding before them to supply evidence in support of an award of attorneys fees.”  (Citations omitted, internal quotation marks omitted.)  Smith v. Snyder, 267 Conn. 456, 471, 839 A.2d 589 (2004).

“[T]he initial estimate of a reasonable attorneys fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate ․ The courts may then adjust this lodestar calculation by other factors ․ For guidance in adjusting attorneys fees, Connecticut courts have adopted the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974).   The Johnson factors are (1) the time and labor required, (2) the novelty and difficulty of the questions, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee for similar work in the community, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation and ability of the attorneys, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases.”   (Citations omitted;  internal quotation marks omitted.)  Ernst v. Deere & Co., 92 Conn.App. 575, 576, 886 A.2d 845 (2005).

The “list of factors [the Johnson factors] is not ․ exclusive.   The court may assess the reasonableness of the fees requested using any number of factors.”  (Internal quotation marks omitted.)   Id., 576 n.3. Similarly, a contract clause providing for reimbursement of incurred fees permits recovery upon the presentation of an attorney's bill, so long as that bill is not unreasonable upon its face and has not been shown to be unreasonable by countervailing evidence or by the exercise of the trier's own expert judgment.  N.E. Leasing v. Paoletta, 89 Conn.App. 766, 778, 877 A.2d 840 (2005), citing Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 246, 440 A.2d 306 (1982).

Counsel for the plaintiff has submitted an affidavit signed by Attorney Wayne Effron setting forth billing hours for Attorney Reuben Midler, Attorney Pyetranker and Attorney Zessman for the motion and brief in relation to the requested sanctions in this matter.   The affidavit requests attorney fees of $1,207.50 for the work in connection with the motion.   Counsel for the defendant has filed a brief in opposition, asserting that the plaintiff has not properly submitted the time and work expended by plaintiff's counsel.   While the court agrees in part with the defendant's position that the award of attorney fees as a sanction is punitive and not tied to a fee agreement, the court also agrees that the guidance offered as to calculation of fees in accordance with the Johnson court is also appropriate.   Considering these arguments the court has examined the time and fees requested by the plaintiff.   The chart of the plaintiff offers very little as to the work of the three attorneys for whom the plaintiff seeks fees.   The hourly rate submitted for Attorney Midler is well beyond the fees awarded in this district for civil litigation counsel.   Additionally, the work which was the subject of the motion is relatively straightforward without any specific expertise required to handle the matter.   Although the attorneys for the plaintiff may garner higher fees from their clients involved in family matters, the agreed upon fees are well in excess of those recognized in civil litigation.   In Mariculture v. Under-Lloyds of London, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 98-1064762S (June 4, 2002, Tierney, J.), the court awarded a rate of $375 per hour for a commercial litigator with 24 years experience.   In Heussner v. Heussner, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 05-4011532S (June 26, 2007, Matasavage, J.) awarded $375 per hour for approved experienced litigator in appeal from Probate.   In the recent case of Parker v. Knauf, Superior Court, judicial district of Stamford/Norwalk, Docket No. CV 08 5007670 (March 3, 2010, Brazzel-Massaro, J.), this court awarded fees of $380 per hour.   These amounts appear consistent with a high quality and well experienced litigation counsel in this court.   Even counsel for the defendant when asked about his hourly rate indicated that his fee is in the neighborhood of $400 per hour.

Given the nature of this matter and the relatively minimal amount of time, the new representation of this client, the desirability of the case and similar cases which involve serious physical and emotional injuries, an hourly rate of $400 is appropriate for an attorney with considerable experience.   In this regard, the time for Attorney Midler at $400 would be an appropriate attorney fee for the work performed.   Therefore at a fee of $400 for 1.7 hours for his work, the court awards a fee of $680 for the motion for sanctions.

The attorney fees for the other counsel are not supported by an appropriate affidavit and the court cannot determine based upon the affidavit and the complete lack of experience or background of each of the attorneys what would be an appropriate fee, if any.   It should be noted that during the course of the argument as to the submission, counsel for the plaintiff did indicate that Attorney Zessman has been working only seven months as counsel.   This background makes it difficult to assess any attorney fees for work which the court also finds to be unnecessary for this motion.   Therefore, the court will not award fees for the time listed in Attorney Effron's affidavit as to either of the associates.

CONCLUSION

Based upon the above, the court awards attorney fees in the amount of $680.   The defendant is to pay the attorney fees on or before June 25, 2010.

THE COURT

Brazzel-Massaro, J.

Brazzel-Massaro, Barbara, J.