Water Pollution Control Authority of the City of Bridgeport v. DMW USA (2011)

MEMORANDUM OF DECISION ON MOTION FOR DETERMINATION OF ATTORNEYS FEES

This is an action by the plaintiff, Water Pollution Control Authority of the City of Bridgeport (“WPCA”) to foreclose statutory liens for municipal sewer use charges against the commercial property located at 1084–1086 Madison Avenue, Bridgeport, Connecticut (“the property”).   The plaintiff alleges that between January 24, 2008 and September 16, 2010 it recorded six specific liens against the property for unpaid sewer use charges in the aggregate amount of $6,486.79.   On October 28, 2008, DMW filed an answer, special defense and counterclaim in response to the plaintiff's complaint.   On November 6, 2008, the plaintiff filed a motion to strike in regard to DMW's special defenses.   The plaintiff's motion to strike was granted by the court, Doherty, J., without objection on May 13, 2009.

Thereafter, on June 2, 2009, the plaintiff filed a motion for summary judgment as to liability only which was granted by the court, Doherty, J., without objection, on July 9, 2009.   On August 10, 2009, the court, Doherty, J., entered a judgment of foreclosure by sale.   The sale date was set for February 10, 2010.   By motion filed December 9, 2009, DMW moved to open the judgment and extend the sale date, which motion was granted by the court, Hartmere, J., on February 8, 2010.

On April 22, 2010, the plaintiff moved to open and vacate the previously entered judgment of foreclosure by sale in order to cite an additional defendant, Cupid Auto Sales, Inc., which inadvertently had been omitted at the commencement of the action.   On May 12, 2010, the court, Hartmere, J., granted the plaintiff's motion to open and vacate and the motion to cite an additional party.   Thereafter, on November 17, 2010, the plaintiff again moved for judgment.   That motion was marked “off” at the plaintiff's attorney's request after defendant's attorney reported that there was another mortgage on the property.   Thereafter, the plaintiff cited another additional defendant, R II Enterprises, LLC (“R II”) to this foreclosure action.   The plaintiff's motion to cite R II as a defendant was granted by the court, Hartmere, J. on January 10, 2011.

On March 10, 2011, DMW filed a motion to cite additional party as well as a third-party complaint.   DMW's filings sought to cite Attorney Judah J. Epstein, individually as a party to this action based on the alleged misappropriation of a check in the amount of $4,396.22.   The motions were based on a statement by Attorney Epstein that he had received a check in the amount of $4,396.22 from a third party.

Before other motions could be decided, the parties entered into a stipulated agreement dated May 23, 2011.   The parties to the agreement were the plaintiff, WPCA and the defendants DMW and R II. Pursuant to the terms of the stipulated agreement DMW was to make monthly installment payments to settle the WPCA debt in full.   DMW failed to make those payments and consequently, the court advanced the sale date to December 3, 2011.   In the stipulated agreement DMW acknowledged owing the plaintiff the sum of $11,436.26 for delinquent sewer use charges and interest.

On June 21, 2011, DMW filed a motion for determination of attorney fees.   The plaintiff, in response, submitted affidavits of attorney fees totaling $16,957.50.   On October 6, 2011, this court conducted an evidentiary hearing on the motion for determination of attorneys fees, subsequent to which memoranda and reply memoranda were filed by the parties, the last of which was a reply memorandum of R II Enterprises filed November 28, 2011.

Legal Discussion

The plaintiff argues that based upon the stipulated agreement that the defendant R II lacks the requisite standing to challenge the attorneys fees.   However, there is no language in the stipulated agreement which precludes R II from contesting the plaintiff's claim for attorneys fees.   Moreover, R II's counsel fully participated in the hearing on that motion without objection from the plaintiff.   The court will find that R II did not waive its right to contest the attorneys fees.

The parties agree that with regard to attorneys fees sought pursuant to Connecticut General Statutes § 12–193, the award and amount of legal fees lies within the discretion of the trial court.  Danbury v. Dana Investment Corp., 249 Conn. 1, 27–29 (1999).   Here, what is contested is whether or not all entries on the plaintiff's affidavit of attorneys fees are directly related to the instant sewer lien foreclosure.   During the hearing, the defendants referenced that the plaintiff on separate occasions was required to cite additional defendants to this action.   While the plaintiff argues that this is common in foreclosure actions, the defendants argue that they should not be required to pay for the plaintiff's mistakes.   The defendant's arguments in this regard have merit.

Based upon the record, this court can not find that the defendant DMW engaged in a contemptuous and dilatory course of conduct as argued by the plaintiff.   Although all payments due under the stipulated agreement were not made by the defendant the court can not find that the failure to make those payments amounted to a contemptuous or dilatory course of conduct.   The fact that a violation of the stipulated agreement by a failure to pay was to be remedied by a motion for contempt does not convert the defendant's conduct into contempt.

DMW's contention that it is entitled to a credit in the amount of $4,396.22 regarding a check purportedly delivered to Attorney Epstein is unsupported by the evidence and testimony.   Additionally, DMW's contention is specifically precluded by the stipulated agreement of the parties.

As outlined above and evidenced by the file, this foreclosure action has a long history.   This was not, and is not, factually a straightforward matter.   The requested attorneys fees are not an exception to this pattern.   The plaintiff has requested attorneys fees totaling $16,957.50 for pursuing a claim to recover $6,486.79 in liened charges and $4,949.47 in interest charges over several years, for a total debt of $11,436.26.

The defendants strongly contest the amount of the attorneys fees sought by the plaintiff in connection with the prosecution of this matter.   The defendants argue that a good portion of the requested attorneys fees arose as a result of the plaintiff's failure to identify and cite in necessary parties to this foreclosure on two separate occasions.

“The 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.”  (Citation omitted;  internal quotation marks omitted.)   Laudano v. New Haven, 58 Conn.App. 819, 822–23, 755 A.2d 907 (2000).   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.  [Internal quotations and citations omitted] Ernst v. Deere & Co., 92 Conn.App. 572, 576 (2005).

In terms of the lodestar calculation, this court finds that the requested hourly rate of $175.00 is reasonable;  however, the number of hours reasonably expended on the litigation is subject to adjustment.   The court has considered all of the Johnson factors and considers the time and labor required, the novelty and difficulty of the questions, the customary fee for similar work in the community, and awards in similar cases to be the most important factors here.   Were it not for the plaintiff's failure to cite in necessary parties on two separate occasions a significant number of billed hours which included court appearances would not have been necessary.   The legal issues involved were not novel or difficult and the customary aggregate fees for similar work in the community is much less.

As a matter of equity, the defendants should not be required to shoulder all of the responsibility for the claimed fees.   Accordingly, the court will grant the defendant's motion for determination of attorneys fees.   The court will order attorneys fees in the amount of $10,000.00 which the court deems fair, equitable and reasonable under all of the circumstances.

So ordered.

HARTMERE, J.

Hartmere, Michael, J.