LLC v. Edward J. O'Hara (2011)

MEMORANDUM OF DECISION

This is an action to recover attorneys fees brought by the law firm of Tibbetts Keating & Butler, LLC (“Firm”) in which the following facts are found by the court.   The firm seeks to collect the sum of $6,520.55 as the balance due under a Retainer Agreement (“Agreement”) signed by the parties on October 22, 2004.   In the Agreement, the plaintiff undertook to represent the defendant in a marital case in the Superior Court in Connecticut.   The defendant, in accordance with the Agreement, made an initial retainer payment of $5,000, and thereafter continued to pay the Firm's fees on a regular basis as billed, throughout the pendency and completion of the divorce case.

The defendant was represented by Timothy Butler, a partner in the Firm in most of the legal work performed for the defendant.   From Butler's testimony and the Exhibits in this case, the court concludes that the defendant was billed the total sum of $65,621.69 for the services, without objection by the defendant at any time during the period, from October 2004 through April 2006.   The defendant has paid the sum of $59,101.14, leaving a balance of $6,520.55 claimed by the plaintiff.¹

The defendant raises the issue of a discount, or credit, of $50.00 per hour that he claims Mr. Butler promised him orally, which, as allegedly promised would be calculated at the end of the proceedings and shown on the billings at that time.   At trial the following took place between the court and the defendant:

THE COURT:  Let me ask you this:  Did Mr. Butler ever tell you that they were going to calculate the credit or the discount at the very end of the case and show it at that point?

MR. O'HARA:  That's what I-

THE COURT:  Did he say that to you?

MR. O'HARA:  That's my recollection, Your Honor I could be wrong but that was my recollection.

The defendant also relies on a letter sent to him by Butler dated October 26, 2005 (“Letter”).   The Letter, defendant's Exhibit D, reads as follows:

October 26, 2005, Edward J. O'Hara, 1414 King Street, Greenwich, CT 06831, Re:  Divorce Proceeding, Dear Ed please find enclosed your invoice for the divorce proceeding, I trust it will meet with your approval.   As a continued courtesy, I am still discounting my hourly rate by $50 per hour, Sincerely, Timothy F. Butler.

The defendant treats this Letter as written confirmation of the previous “oral agreement” of a discount to be calculated at the end of the case.   However, the court does not credit the testimony of the defendant as to such an oral agreement because of the doubt cast upon his recollection of it by the defendant himself.   TR. P. 119, lines 18, 19, 20 and 21.  (“THE COURT:  Did he say that to you?   MR. O'HARA:  That's my recollection, Your Honor I could be wrong but that was my recollection.”)

Butler testified there was no such agreement and that the Letter, properly interpreted, is not evidence of it.   At the time of the Agreement, it was stipulated therein that the regular hourly rate of Mr. Butler was currently $300 per hour and that it would remain so until the end of the calendar year in which the Agreement was made.   Thereafter, the Agreement permitted the firm to increase such rates upon 30 days advanced notice to the client.   The Agreement was signed on October 22, 2004 and the firm raised Butler's rates in 2005, by $50 to $350 per hour, and in 2006 to $375 per hour.   At the time of signing of the Agreement Mr. Butler told the defendant that the firm's practice was generally to raise their fees at the beginning of each calendar year but that he would continue to charge Mr. O'Hara $300 per hour amounting to a $50 per hour discount.   Mr. Butler's version of the conversation is more credible than that of the defendant's.

The firm did not notify the defendant about the change in rates;  the rate remained at the original $300 during 2005 and throughout the remainder of the representation.

On those facts the intended meaning of the Letter becomes still clearer.   The plaintiff raised its rates by $50 in 2005 with no notice to the defendant.   No notice was necessary because the plaintiff kept the defendant's billing at the original $300 per hour, and the defendant continued paying the charges at that rate.   Effectively the defendant was being given a $50 per hour discount which began at the beginning of the year 2005.   In the Letter, Butler tells the defendant that the discount represents a “continued courtesy.”   The court finds that the intent of the Letter was to confirm that as of the date of the Letter (October 26, 2005) the Firm was still charging a $50 per hour discount rate which had begun at the beginning of the year, and which had been declared to the defendant when the Agreement was signed.   The defendant argues that the oral agreement was for a $50 per hour discount from Butler's regular hourly rate of $300 to $250 per hour, to be granted at the very end of the entire matter, and adjusted at that time.   Such an agreement lacks credence.

The defendant, testing Butler's credibility, also claims that the Firm did not raise their rates to $350 since another partner, Mary Keating, who he claims had done some work on his file in the year 2005, charged him at the same $300 rate and not $350.   He mistakenly believes that his Agreement was with Butler, and not with Keating, and therefore if the partners' rates had changed, she would have charged $350 in 2005.   The Agreement was with the Firm executed on behalf of the Firm by Mr. Butler.   Therefore, by virtue of the law, reason and business logic, an alternative partner representing a client on occasion, in place of the leading partner in the case, would charge the client no more than he had been paying the partner with whom he made the fee arrangement on behalf of the firm, and who represented him throughout the litigation.

Defendant's Special Defenses and Counterclaim

Defendant's only current special defense and counterclaim seem to concern the same $50 per hour issue addressed by the court hereinabove in this memorandum.   Any prior issues raised by the defendant were either not pursued at trial or were not briefed beyond a statement of the claim and are deemed abandoned.   Connecticut Light & Power v. Department of Public Utility, 266 Conn. 108, 830 A.2d 1121 (2003).

Conclusion

The court finds that the plaintiff has proven its case by a preponderance of the evidence and that there is no merit to the defendant's special defense and counterclaim.

Judgment may enter in favor of the plaintiff against the defendant in the amount of $6,520.55, together with contract interest (per the Agreement) at the rate of 9% per annum from December 6, 2006 to October 7, 2010 in the amount of $2,248.55, for a total of $8,769.10.

In addition, by filing an offer of compromise on November 25, 2009 in the amount of $6,000, the plaintiff claims offer of compromise interest, pursuant to Conn. Gen.Stat. § 52-192a, at the rate of 8% per annumn from that day to October 7, 2010 or $413.96.   The court orders that said sum be added to the award.

The court further awards a reasonable attorneys fee in the amount of $350, pursuant to the C.G.S. Section 52-192a(c).

The plaintiff claims attorneys fees in the amount of $24,720.01 and filed an affidavit to that effect.   However, the plaintiff cites no authority to suggest that it is entitled to attorneys fees for the trial of this collection matter.   Under a settled principle of Connecticut Law, the American rule is that each party is responsible for its own attorneys fees, unless some specific statutory or contractual exception provides to the contrary.   Ray Andrews' Appeal from Probate, 78 Conn.App. 441, 450 (2003).   There is no such exception demonstrated in this case.

Summary

Therefore, the defendant is to pay to the plaintiff $6,520.55, plus interest by contract of $2,248.55, offer of compromise interest of $413.96, and attorneys fees of $350 pursuant to Conn. Gen.Stat. 52-192a, for a total of $9,532.86.

The request by the plaintiff for further attorneys fees in the amount of $24,720.01 is denied.   So Ordered.

BY THE COURT

D'ANDREA, J.T.R.

FOOTNOTES

FN1. The defendant made two payments in 2006, after the litigation was complete.   One was made on June 30, 2006 in the amount of $15,000, and the other on July 14, 2006 in the amount of $5,000, totaling $20,000, being the total amount the defendant claims the plaintiff alleged in his complaint to have been paid by the defendant.   The defendant, misconstruing the language of the complaint and the evidence in the case, accuses the plaintiff of an attempt to mislead the court..  FN1. The defendant made two payments in 2006, after the litigation was complete.   One was made on June 30, 2006 in the amount of $15,000, and the other on July 14, 2006 in the amount of $5,000, totaling $20,000, being the total amount the defendant claims the plaintiff alleged in his complaint to have been paid by the defendant.   The defendant, misconstruing the language of the complaint and the evidence in the case, accuses the plaintiff of an attempt to mislead the court.

D'Andrea, Frank H., J.T.R.