Lisa Noel et al v. LLC (2010)

MEMORANDUM OF DECISION RE

[# 139] PLAINTIFFS' MOTION FOR ATTORNEYS FEES & COSTS

On December 7, 2009, the plaintiffs, Ms. Lisa Noel and Ms. Jessica Wildowsky, filed an amended eight-count complaint against the defendants, Ribbits, LLC, Mr. Edward Birkmanis, and Mr. Gustav Birkmanis, the plaintiffs' former employers.   Therein, the plaintiffs brought forth individual claims alleging:  discrimination on the basis of sex and sexual harassment pursuant to General Statutes § 46a-60(a)(1) and (8);  assault and battery;  retaliation for complaining of sex discrimination and sexual harassment pursuant to General Statutes § 46a-60(a)(4);  and intentional infliction of emotional distress.   The matter was tried over the course of multiple days to a jury.   On December 22, 2009, the jury in this matter returned a verdict in favor of the plaintiffs on their sex discrimination and sexual harassment claims brought pursuant to General Statutes § 46a-60(a)(1) and (8) of the Connecticut Fair Employment Practices Act, and in favor of the defendants as to all remaining claims.   With regard to plaintiff Noel's claim of sex discrimination and sexual harassment the jury awarded her $1,600.00 in compensable damages.   With regard to plaintiff Wildowsky's claim of sex discrimination and sexual harassment the jury awarded her $0 in damages.   On January 19, 2010, the judgment was entered.   Thereafter, on February 10, 2010, the plaintiffs filed the present motion for attorneys fees and costs, pursuant to Practice Book § 11-21 and General Statutes § 46a-104, with an accompanying memorandum of law in support of their motion.   Therein, the plaintiffs seek an award of attorneys fees in the amount of $160,731.25 and litigation expenses of $4,997.84.   On February 24, 2010, the defendants filed a memorandum of law in opposition, to which the plaintiffs filed a reply on March 18, 2010.   The matter was heard on the short calendar.

DISCUSSION

“The general rule of law known as the American rule is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception ․ This rule is generally followed throughout the country ․ Connecticut adheres to the American rule ․ There are few exceptions.   For example, a specific contractual term may provide for the recovery of attorneys fees and costs ․ or a statute may confer such rights ․ Parties may also contract for an award of attorneys fees.”  (Citations omitted;  internal quotation marks omitted.)  TES Franchising, LLC v. Feldman, 286 Conn. 132, 148-49, 943 A.2d 406 (2008).   See also Fennelly v. Norton, 294 Conn. 484, 504, 985 A.2d 1026 (2010).  “It is well settled that the reasonableness of attorneys fees and costs must be proven by an appropriate evidentiary showing ․ An evidentiary hearing is only one of many methods to satisfy this requirement ․ A trial court may 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.”  (Internal quotation marks omitted.)  Mortgage Electronic Registration Systems, Inc. v. Book, 97 Conn.App. 822, 833, 908 A.2d 547 (2006).  “Section 11-21 of our rules of practice provides that a party shall file a motion for attorneys fees with the court within thirty days following the date on which the final judgment of the trial court was rendered.”  (Internal quotation marks omitted.)  Landry v. Spitz, 102 Conn.App. 34, 60, 925 A.2d 334 (2007).

In support of their motion for attorneys fees, the plaintiffs argue that they are entitled to recover attorneys fees, pursuant to General Statutes § 46a-104, as a result of prevailing on their statutory sex discrimination and sexual harassment claims brought pursuant to General Statutes § 46a-60(a)(1) and (8) of the Connecticut Fair Employment Practices Act. The plaintiffs further contend that such fees should be calculated by multiplying the reasonable amount of hours expended in this case times the appropriate hourly rate for the individual attorney providing the services.   Accordingly, the plaintiffs argue that they are entitled to an award of attorneys fees in the amount of $160,731.25 and litigation expenses of $4,997.84.   The plaintiffs further argue that they are entitled to an award of attorneys fees regardless of the amount recovered in the judgment.   The defendants counter that the vast majority of the claims brought by the plaintiffs were found in favor of the defendants and that the only damages awarded in the matter amounted to a mere $1,600.00.   The defendants further aver that when damages are modest, the attorneys fees, if any, must be correspondingly modest.   Lastly, the defendants argue that in this matter written retainer agreements were executed by the plaintiffs with their counsel expressly providing that the only fees in the case would be one-third of the gross proceeds.   Thus, the defendants contend that plaintiff Wildowsky is not entitled to any attorneys fees since she did not recover monetarily and that plaintiff Noel, who recovered $1,600.00, would at most be entitled to $533.33 for attorneys fees.

As previously noted, the general rule of law in Connecticut is that attorneys fees are not allowed to the successful party absent a contractual or statutory exception which confers such right.   Here, the plaintiffs have brought forth their motion for attorneys fees pursuant to General Statutes § 46a-104, which provides the necessary statutory predicate for such award.  “The purpose of the [Connecticut Fair Employment Practices Act] is to protect individuals, in part, from discrimination on the basis of their sex.  Section 46a-104 sets forth the relief available to a plaintiff who prevails in a discrimination action:  ‘The court may grant a complainant in an action brought in accordance with Section 46a-100 such legal and equitable relief which it deems appropriate including, but not limited to, temporary or permanent injunctive relief, attorneys fees and court costs.’  “ (Emphasis added;  internal quotation marks omitted.)  Perez v. D and L Tractor Trailer School, 117 Conn.App. 680, 708, 981 A.2d 497 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010).   Accordingly, this court may, within its discretion, grant the plaintiffs' motion for attorneys fees and costs pursuant to General Statutes § 46a-104, as a result of their success on their statutory sex discrimination and sexual harassment claims.   However, having established a statutory basis for an award of reasonable attorneys fees, the court's next step is to determine the extent to which the plaintiffs' contingency fee agreements with their counsel should be the basis for the court's award of reasonable attorneys fees.

“[A] trial court should not depart from a reasonable fee agreement in the absence of a persuasive demonstration that enforcing the agreement would result in substantial unfairness to the defendant[s].”  (Internal quotation marks omitted.)  Schoonmaker v. Brunoli, 265 Conn. 210, 270, 828 A.2d 64 (2003).   Specifically, “when a contingency fee agreement exists, a two step analysis is required to determine whether a trial court permissibly may depart from it in awarding a reasonably fee pursuant to statute or contract.   The trial court first must analyze the terms of the agreement itself ․ If the agreement is, by its terms, reasonable, the trial court may depart from its terms only when necessary to prevent ‘substantial unfairness' to the party, typically a defendant, who bears the ultimate responsibility for payment of the fee.”   (Citations omitted;  internal quotation marks omitted.)  Id., 270-71.   See also Association Resources, Inc. v. Wall, Superior Court, judicial district of Hartford, Docket No. CV 05 4016170 (November 13, 2008, Rittenband, J.T.R.).   In the present case, the plaintiffs entered into separate, but near identical, agreements for legal counsel with the law firm of Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., for representation in the present matter.   The court has reviewed the agreements and the contingency fee provisions therein and finds that by their terms they are reasonable in light of Rule 1.5 of the Rule of Professional Conduct.   The court finds that it should not depart from the terms of the contingency fee agreements because they do not do substantial unfairness to the defendants.   Therefore, plaintiff Wildowsky is not entitled to any attorneys fees since she did not recover monetarily and plaintiff Noel, who recovered $1,600.00, is entitled to $533.33 for attorneys fees, based upon her one-third contingency fee agreement.

Furthermore, the court notes that limiting the attorneys fees to the amount set forth by the contingency fee agreement does not interfere with the legislative purpose of the Connecticut Fair Employment Practices Act. As long as the court awards attorneys fees that are sufficient to cover the plaintiffs' financial obligations to their counsel pursuant to their contingency fee agreement, the plaintiffs will still be made whole by the award.   Our Supreme Court has deemed “disingenuous the notion that a fee award that is disappointing to [a] plaintiff's attorney has any relation to the act of compensating [a] plaintiff himself or herself.”  Schoonmaker v. Brunoli, supra, 265 Conn. 273.

CONCLUSION

Based on the forgoing, the court hereby grants the plaintiffs' motion for attorneys fees in the amount of $533.33 and motion for costs in the amount of $4,997.84.

RILEY, J.

Riley, Michael E., J.