LLC v. LP (2011)

MEMORANDUM OF DECISION ON APPLICATION FOR ATTORNEYS FEES

A courtside trial was held in this matter beginning on August 18, 2010, through August 24, 2010.   Post-trial briefs were filed on September 10, 2010, October 12, 2010, and October 15, 2010.   A written Memorandum of Decision was entered on December 15, 2010, which entered judgment in defendants' favor on multiple grounds and awarded the defendants attorneys fees on their General Statutes § 20–417c(6) claim.   A hearing on the issue of attorneys fees to be awarded was scheduled for January 24, 2011, and the defendants were ordered to file an affidavit of attorneys fees.

On December 21, 2010, the defendant Luz Negron filed an affidavit concerning the defendants' application for attorneys fees.   Counsel did not file any affidavits regarding the application for attorneys fees.   The plaintiff filed an objection on January 4, 2011, citing numerous deficiencies in the affidavit, including an objection to billings not related to this action on the claims on which the defendants prevailed.   A hearing was held on January 24, 2011, in which the deficiencies noted in the plaintiff's objection were argued and discussed with the defendants' counsel, including the deficiency that the affidavit should be filed by the attorneys, not the defendants.   Defendants' counsel asked for a continuance to address and correct the deficiencies noted and was granted a continuance until February 7, 2011.   On February 3, 2011, due to extreme weather conditions, the defendants' counsel moved for a continuance to file a new compliant affidavit of attorneys fees.   The court granted the defendants' counsel's request and gave him until March 4, 2011, to file such affidavit.   The court also set a hearing date on this attorneys fees issue for March 14, 2011.   By March 4, 2011, defense counsel had not filed any affidavits in support of the defendants' application for attorneys fees.   On March 9, 2011, one of the defendants' counsel, Mark Lee, Esq. filed an unsigned affidavit of attorneys fees.   The plaintiff filed an objection to the amended attorneys fees application that same date, citing many of the same numerous deficiencies.

Shortly before the hearing, the court reviewed the court file and discovered a second affidavit had been filed by defendants' other counsel, Raymond Antonacci, Esq. on March 11, 2011.   While attorney Antonacci advised the court that such affidavit was served on plaintiff's counsel, plaintiff's counsel advised the court that as of the time of the hearing, he had not received a copy of the affidavit.   At oral argument, both counsel for defendants were present and both were specifically asked why they did not comply with the court's order mandating the filing of such affidavits by March 4, 2011.   While professional and apologetic, neither counsel had a good explanation for the delay.   The affidavits filed by counsel stated that the hourly rate for attorney Antonacci was $300 and the hourly rate filed by attorney Lee was $150 per hour.   The hourly rate for attorney Antonacci was consistent with the amount reflected in the bills attached to the defendant Luz Negron's December 21, 2010, affidavit.   However, the $150 hourly rate of attorney Lee set forth in his unsigned affidavit was inconsistent with the $175 hourly rate set forth in the bill attached to defendant's December 21, 2010, affidavit.

“It is well established that a trial court calculating a reasonable attorney's fee makes its determination while considering the factors set forth under rule 1.5(a) of the Rules of Professional Conduct.”  Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 259 828 A.2d 64 (2003).  “A court utilizing the factors of rule 1.5(a) considers, inter alia, 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.”  Id. “The court's normal starting point for calculating reasonable attorneys fees ․ is the calculation of a so-called ‘lodestar’ figure, which is arrived at by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate ․ The lodestar should be based on prevailing market rates ․ for comparable attorneys of comparable skill and standing in the pertinent legal community.   Applications for fee awards should generally be documented by contemporaneously created time records that specify, for each attorney, the date, the hours expended, and the nature of the work done ․ Hours that are excessive, redundant, or otherwise unnecessary, are to be excluded ․ and in dealing with such surplusage, the court has discretion simply to deduct a reasonable percentage of the number of hours claimed as a practical means of trimming fat from a fee application ․ A prevailing party who is entitled to a fee award for his successful prosecution of successful claims is not entitled to a fee award for unsuccessful claims that were based on different facts and different legal theories.  (Citations omitted;  internal quotation marks omitted.)  Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 172–73 (2d Cir.1998).

The court has reviewed the bills attached to the defendant Luz Negron's December 21, 2010, affidavit in support of motion for attorneys fees.   Though untimely, the court also reviewed the two affidavits filed by counsel.   The defendants' counsel, attorney Antonacci, claims in his March 11, 2011, affidavit that he has reviewed his entire file and that his entire fee of $29,123 is related to the CUTPA claim the defendants prevailed on.   After reviewing the bills sent by counsel to the defendants which were attached to defendant Luz Negron's December 21, 2010, affidavit in support of their application for attorneys fees, this claim has no merit.   Even if the court accepted the affidavits filed by counsel on March 9 and March 11, 2011, except for the time they were before this court at trial, the affidavits do not sufficiently break down by date and time the work done on the claims on which the defendants prevailed.

Notwithstanding the inadequacy of the affidavits filed by counsel, the court finds that both counsel did appear before this court for four days at trial and prosecuted and prevailed on the defendants' counterclaim.   With respect to this trial time, the court finds that with the exception of four hours at trial which was spent with counsel on evidentiary issues relating to the plaintiff's mechanic's lien claim, the remaining trial time was so intermingled with the claims made by both plaintiff on its mechanic's lien and the defendants' prevailing counterclaim, that attorneys fees may be awarded to the defendants for this time.

The court has before it evidence from trial regarding the labor involved by both counsel in pursuing the defendants' claims under General Statutes § 20–417c(6), counsel's experience, and the fixed hourly rates the defendants were charged by their attorneys.   As to the hourly rates that were charged for this time, the court looks to the December 21, 2010, affidavit of Luz Negron which attached bills prepared by counsel and sent to the defendants.   The court finds that attorney Antonacci's hourly rate of $300 for court trial time which he charged the defendants in his September 2, 2010, bill to be reasonable and comparable to rates charged in this locality.   The court also finds the $175 hourly rate charged by attorney Lee for court trial time in the September 2, 2010 bill to be reasonable and well within the rates charged in this locality for this type of legal work.   The court finds that each counsel performed legal services for the defendants at trial over the course of four days, six and one-half hours per day for a total hours of 26 hours.   Subtracting from that amount the four hours at trial the court deems pertained exclusively to other issues, the court finds that the defendants' counsel performed legal services at trial for 22 hours each relating to the counterclaim that the defendants prevailed on.   The legal fee awarded for attorney Antonacci's services is $6,600 and the legal fee awarded for attorney Lee's services is $3,850.   The total attorneys fees awarded to the defendants is $10,450.

In its December 15, 2010 Memorandum of Decision the court also awarded costs to the defendants on their § 20–417c(6) claim.   However, while the defendant Luz Negron's December 21, 2010, affidavit requests $892 in costs, neither the December 21, 2010, affidavit, nor any affidavit thereafter sets forth in detail the basis of such costs as to enable the court to award them.   As such the defendants' application for costs is denied.

CONCLUSION

For the reasons stated above, the court awards the defendants $10,450.00 in attorneys fees.

BY THE COURT

Ozalis, J.

Ozalis, Sheila A., J.