Bruce K. Jalbert et al. v. Lawrence R. Mulligan et al. (2013)

MEMORANDUM OF DECISION

This matter was tried to the court on March 12–14, 2013.   Thereafter, in lieu of oral argument, the parties presented post-trial briefs, filed on May 15, 2013.   After consideration, the court issues this memorandum of decision.

I

Background

In count one of their five-count fourth revised complaint (# 166) (complaint), the plaintiffs, Bruce K. Jalbert and Pamela D. Jalbert (hereinafter referred to as the plaintiffs or the Jalberts), allege that their former attorney, defendant Lawrence R. Mulligan, Esq., is liable for converting funds in the course of representing them concerning a real property dispute between neighbors.   In count two, the plaintiffs allege that the defendant is liable for statutory theft, pursuant to General Statutes § 52–564,¹ In count three, the plaintiffs allege that the defendant's conduct in his legal representation and billing concerning that the property dispute violated the Connecticut Unfair Trade Practices Act, General Statutes § 42–110a et seq.

In count four, the plaintiffs claim that the defendant is liable for fraud.   In count five, they allege he made false representations and/or statements, as a result of which he received something of value from the plaintiffs without compensating them.

The Jalberts are husband and wife.   Pamela Jalbert did not graduate from high school and received a GED. Bruce Jalbert is a carpenter.   The defendant acted as the plaintiffs' attorney between 1995 and 2008, including on real estate transactions.   He represented them when they purchased their home at 35 Tolstoy Lane in Southbury, Connecticut, for $295,000, in 2004.   On the defendant's recommendation, they purchased title insurance from Chicago Title Insurance Company (Chicago Title).   The defendant also handled Bruce Jalbert's father's estate, including probate work and real estate transactions.

The defendant was a close personal friend of the Jalberts.   He testified that he and his wife and the Jalberts “were about as close as you would deem family.”   See Trial Transcript, March 12, 2013, p. 122 (hereafter, Tr., March _ 2013, p. _).  During a ten-year period, they had dinner together, socialized at one another's homes, and traveled together.

When they purchased their home in 2004, the Jalberts were aware that a neighboring owner, Jean Elin, of 39 Tolstoy Lane, had an easement for a right of way over their land.   See Plaintiffs' Exhibit 4 (hereafter, Plff.Exh. _).  Pamela Jalbert described it as a passway to a summer cottage, to be used for three weeks to three months out of the year, which was not to be widened or maintained.   In 2005, after friends of the Jalberts learned of an issue concerning rights to use Tolstoy Lane and, as a result, decided not to purchase 39 Tolstoy Lane, the Jalberts asked the defendant to represent them concerning the easement issue.

To compensate the defendant for his legal services, the Jalberts and the defendant agreed to a barter system, contingent on whether Chicago Title provided representation to the Jalberts.   They agreed that, if Chicago Title did not provide representation, the parties would exchange Bruce Jalbert's construction work for the defendant's legal services.   If Chicago Title did provide representation, then the defendant would pay for Bruce Jalbert's work.   This agreement was not put in writing.

Between 2005 and 2007, Bruce Jalbert worked on several renovation projects for the defendant, at properties located in Connecticut, New York and Rhode Island.   The undisputed value thereof was $84,750.   See Plff. Exh. 17 (summary).

Elin sold 39 Tolstoy Lane to Warren Enterprises, LLC (Warren Enterprises) in May 2006.   Warren Enterprises sued the Jalberts, in November 2006, seeking access to Tolstoy Lane over the plaintiffs' property (Warren Enterprises litigation).   See Plff. Exh. 6. After receiving the suit papers, the defendant contacted Chicago Title and then told Pamela Jalbert that Chicago Title's claims representative informed the defendant that Chicago Title was not going to provide representation for the Jalberts.   As a result, Mrs. Jalbert asked the defendant to represent them.   He represented them at court appearances in December 2006 and February 2007.

After the second appearance in February 2007, the defendant informed the Jalberts that Chicago Title had hired Attorney Neil Marcus of the law firm of Cohen & Wolf, P.C. “to help him.”   See Tr., March 12, 2013, p. 38.   In fact, by letter dated March 8, 2007 (Plff.Exh. 9), Chicago Title informed the defendant that it had retained Marcus to defend the Jalberts, and that it would not be responsible for any fees or expenses of any other counsel.   Marcus filed an appearance for the Jalberts in the Warren Enterprises litigation, in lieu of the defendant, in March 2007, to defend the Jalberts against all counts of the complaint in that matter.   See Plff. Exh. 45.   The defendant did not provide Chicago Title's letter to the Jalberts and they saw it only after the Warren Enterprises litigation was settled in April 2008 and after they had commenced suit against the defendant in this matter.

In May 2007, the defendant asked the plaintiffs for $85,000 from Bruce Jalbert's father's trust (the trust), in order to show Chicago Title that the Jalberts had paid the defendant for his work.   According to the defendant, he could not show Chicago Title that he had been paid by Bruce Jalbert's work.   The defendant agreed to hold the $85,000 in an escrow account, to be returned to the trust after the settlement of the Warren Enterprises litigation.   As discussed further below, the trust provided the $85,000, which the Jalberts provided to the defendant by personal check.   See Plff. Exh. 30.   The defendant did not return these funds.

Prior to Marcus' appearance, the defendant filed no pleadings in the Warren Enterprises litigation.   Marcus filed pleadings after he appeared.   Marcus then worked with opposing counsel, who also had been retained by a title insurance company, to settle the Warren Enterprises litigation.   No depositions were taken and no motion practice occurred.

As part of the settlement, Warren Enterpises received a parcel on the north side of the Jalberts' property for use as a driveway and the Jalberts received a parcel as a buffer zone so that their neighbors could not build near the Jalberts' house.   Also, $50,000 each was paid by Chicago Title and First American Title Insurance Company, Warren Enterprises' title company.   These funds were deposited in the defendant's client funds account.   As discussed further below, the defendant received $50,000 from the settlement.

The court discusses the evidence further below.

II

Discussion

The resolution of this matter involves the court's assessments of credibility and the fiduciary nature of the attorney-client relationship.  “In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.”  (Internal quotation marks omitted.)  Gianetti v. Norwalk Hospital, 304 Conn. 754, 780, 43 A.3d 567 (2012).  “A trier of fact is free to reject testimony even if it is uncontradicted ․ and is equally free to reject part of the testimony of a witness even if other parts have been found credible.”  (Internal quotation marks omitted.)  Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 12, 662 A.2d 89 (1995).  “[T]he credibility of witnesses, the findings of fact and the drawing of inferences are all within the province of the trier of fact.”  (Internal quotation marks omitted.)  Keeney v. Buccino, 92 Conn.App. 496, 513, 885 A.2d 1239 (2005).

“[T]he relationship between an attorney and client must involve personal integrity and responsibility on the part of the lawyer and an equal confidence and trust on the part of the client ․ The relationship between an attorney and his client is highly fiduciary in its nature and of a very delicate, exacting, and confidential character, requiring a high degree of fidelity and good faith.”  (Citations omitted;  footnote omitted;  internal quotation marks omitted.)  Matza v. Matza, 226 Conn. 166, 183–84, 627 A.2d 414 (1993).

A

Count One–Conversion

Conversion is an unauthorized assumption and exercise of the right of ownership over property belonging to another, to the exclusion of the owner's rights.”  Mystic Color Lab, Inc. v. Auctions Worldwide, LLC, 284 Conn. 408, 418, 934 A.2d 227 (2007).  “The intent required for a conversion is merely an intent to exercise dominion or control over an item even if one reasonably believes that the item is one's own.”  Plikus v. Plikus, 26 Conn.App. 174, 180, 599 A.2d 392 (1991).   The plaintiffs' burden to prove conversion is by clear and convincing evidence.   See Suarez–Negrete v. Trotta, 47 Conn.App. 517, 518, 705 A.2d 215 (1998).

“To establish a prima facie case of conversion, [a] plaintiff ha[s] to demonstrate that (1) the material at issue belonged to the plaintiff, (2) that [the defendant] deprived the plaintiff of that material for an indefinite period of time, (3) that [the defendant's] conduct was unauthorized and (4) that [the defendant's] conduct harmed the plaintiff.”  (Internal quotation marks omitted.)  Coster v. Duquette, 119 Conn.App. 827, 832, 990 A.2d 362 (2010).  “There may be a conversion by a wrongful taking, by an illegal assumption of ownership, by an illegal user or misuse, or by any other form of possession wrongfully obtained.   Furthermore, a wrongful detention, even though possession was rightfully obtained, may constitute conversion.”  Bruneau v. W & W Transportation Co., 138 Conn. 179, 182–83, 82 A.2d 923 (1951).

“Under our case law, [m]oney can clearly be subject to conversion.”  (Internal quotation marks omitted.)  Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771, 905 A.2d 623 (2006).

The court credits the plaintiffs' contentions that the $85,000 from the trust was paid to the defendant, in response to his request, in order to enable him prove to Chicago Title that the Jalberts had incurred legal fees, and had paid the defendant that amount for his legal services in connection with the Warren Enterprises litigation, and that the defendant promised to hold those funds in escrow and to return them to the plaintiffs.   In contrast, the defendant's explanation of the parties' understanding as to the May 2007 payment to the defendant of the $85,000 lacks credibility.   The evidence is clear and convincing that the plaintiffs were misled by the defendant into providing the $85,000 payment.   Likewise, the plaintiffs' authorization of payment of $50,000 to the defendant from the settlement of the Warren Enterprises litigation also stemmed from misleading conduct by the defendant, by which he caused them to believe that he was representing their interests in that matter and that Chicago Title had refused to do so.

The defendant relies on his May 2007 correspondence to Paul McNinch of American Guaranty & Trust Company (Plff.Exhs.25–26), which he argues sets forth a summary of the situation, why and how he was entitled to the $85,000 payment, and that Bruce Jalbert agreed thereto, as evidenced by his signature.   In the first of these letters, dated May 9, 2007 (Plff.Exh. 25), the defendant asserted that he saw the Warren Enterprises litigation as “a money machine,” and that legal fees in the amount of $200,000 will be incurred by both parties.   The defendant added that, “[t]he litigation itself is going to take us to Cleveland, Ohio and Bangor, Maine in order to take depositions of persons who owned the property earlier in time.”

In the May 9, 2007 letter, the defendant sought $85,000 in order to continue to work on the Jalberts' behalf to settle the property dispute, noting that Chicago Title had been “dragging its heals [sic].”   He also stated that “[t]his distribution is made on the condition that in our litigation against Chicago Title any of those funds which we recover, from the AGT funds, would be sent back to AG & T for redeposit into the Trust Fund. This can be a part of the distribution condition and Mr. Jalbert is willing to sign such a document.”   The defendant's request for the $85,000 payment was further supported by his statement that “I have approximately 5,000 pages of data at this point in time and we are about to go into a heavy round of discovery procedures.   I am hoping to avoid this by settling the case soon.”

The defendant's letter was a studied effort to obtain funds by providing misleading information, since the defendant nowhere stated therein what he knew at the time:  that Chicago Title was providing a defense for the Jalberts in the Warren Enterprises litigation, that the law firm of Cohen & Wolf had appeared as counsel in that matter in lieu of the defendant, and that he was no longer counsel of record representing them.   See Plff. Exh. 9, letter from Chicago Title to defendant, dated March 8, 2007, tendering defense to the Jalberts.   Instead, the defendant stated in the May 9, 2007 letter, “I have just been advised that Chicago Title, who hired counsel a few months ago, the day before the first court hearing, is not going to pay prior legal fees, which decision I believe will be overturned once I sue them.”

In his letter, the defendant did not advise that the counsel hired by Chicago Title was representing the plaintiffs.   Instead, a reader of the letter reasonably would be led to believe that the payment sought was for the purpose of funding the defendant's continued representation of the Jalberts in the Warren Enterprises litigation in order to secure a settlement about which Chicago Title was dragging its heels.

The evidence also does not establish that the defendant provided legal services in connection with the Warren Enterprises litigation which were worth a payment of $85,000.   The defendant did not engage in discovery, such as taking or defending depositions, or prepare witnesses, or prepare for trial, or represent the Jalberts at trial.   By comparison, Marcus, who represented the Jalberts in the Warren Enterprises litigation for about one year, billed approximately $10,800 for his services.   See Tr., March 13, 2013, pp. 52–53.   The defendant's claimed legal work was unsupported by contemporaneous time records, and he acknowledged that it included an inordinate amount of time reviewing deeds.   See Tr., March 14, 2013, p. 102.   The court is unpersuaded by his assertions about the value of and the extent of the legal work he claims to have performed.

The court also finds unpersuasive the defendant's argument that Marcus' testimony demonstrates that the Jalberts “were fully aware that Chicago Title and Attorney Neil Marcus were representing them.”   See defendant's post-trial brief, p. 5. While Marcus testified that, in March 2007, he told the Jalberts that he had been retained by Chicago Title to represent them, he also stated that they requested that he communicate with them through the defendant.   See Tr., March 13, 2013, pp. 73–75.

Significantly, Marcus explained that the defendant asked that the defendant “be the filter between the Jalberts and me.”   See Tr., March 13, 2013, p. 47.   According to Marcus, the defendant told Marcus that the Jalberts “were like family to him,” “[the defendant] considered Mr. Jalbert to be like a brother,” but the defendant “thought that they were not the brightest people in the world and—he was not complimentary to their abilities to grasp the concepts that I would have to explain to them and he could explain them better.”   See Tr., March 13, 2013, p. 47.   Pamela Jalbert testified that the defendant told the Jalberts not to speak to Marcus.   See Tr., March 12, 2013, p. 85.

Marcus also testified that, in March 2008, when he was in the process of attempting to settle the Warren Enterprises litigation, he realized that the Jalberts did not understand that he was representing them.   Marcus stated that he received threatening communications from the Jalberts.   See Tr., March 13, 2013, pp. 101–02;  defendant's Exhibit I (email from Pamela Jalbert to Marcus, dated April 12, 2008).   Marcus testified that, at some point, “I realized that the communications weren't working because the Jalberts and Larry Mulligan were somewhat on the outs at that point, and this brotherly love that I'd been led to believe was a relationship had really turned nasty.”   See Tr., March 13, 2013, p. 101.   He testified that he had thought the Jalberts were aware that he was defending them, “but apparently, they were not.”   See Tr., March 13, 2013, p. 101.   Only after he spoke to them directly did he learn that they were “somewhat confused,” and they thought that the defendant was representing them, until they had a falling out with him.   See Tr., March 13, 2013, pp. 101–02.   Thus, while Marcus initially informed the Jalberts about what his role would be, they did not understand and continued to rely on the defendant, who they thought was representing them and looking out for their interests.

Under these circumstances, Bruce Jalbert's signatures on the May 9, 2007 letter to American Guaranty & Trust Company (Plff.Exh. 25) and the subsequent letter of protection (Plff Exh. 26), authorizing a distribution of monies from the trust, to be paid to the defendant, are of no factual significance.   The Jalberts and the defendant previously had agreed to the barter agreement concerning how the defendant was to be compensated.   It is evident that the Jalberts were misled by the defendant as to his role in connection with the Warren Enterprises litigation.   Where, as here, Bruce Jalbert's approval of the payment to the defendant of monies received from the trust was based on misleading conduct by the defendant, his signature provides no support to the defendant's factual contentions.   See Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 331 n.30, 852 A.2d 703 (2004) (conversion where defendant secures possession “illegally or tortiously, by fraud or other wrongful conduct” (internal quotation marks omitted)).

Similarly, the court credits the plaintiffs' contention that their authorization of payment of $50,000 to the defendant, from the Warren Enterprises litigation settlement proceeds, was based on his misleading conduct.   If the plaintiffs had understood that Chicago Title had been defending them, they would not have agreed that the defendant was entitled to that sum.   In the May 14, 2007 letter of protection from the defendant to Paul McNinch of American Guaranty & Trust Company (Plff.Exh. 26), which was approved by Bruce Jalbert, the defendant stated that the purpose of the $85,000 advance from the trust was to pay legal fees for the Warren Enterprises litigation.   He also stated that if “the first portion of the case,” meaning the Warren Enterprises litigation, settled for $100,000, he would be advancing $50,000 from his legal fees, and refunding $50,000 to American Guaranty & Trust Company at that time, and that an additional $35,000 would be refunded to make the trust whole after successfully resolving the contemplated suit against Chicago Title.   After receiving the settlement funds from the Warren Enterprises litigation, no refund to American Guaranty & Trust Company was made by the defendant.

Instead, of the $100,000 received from the title companies, the defendant retained $50,000 as a payment for his legal services.   The plaintiffs received a check in the amount of $23,500.   See Plff. Exh. 42.   This reduced amount reflected a repayment to the defendant of monies loaned for the purchase of a motorcycle by Bruce Jalbert.

As discussed above, as Marcus testified, the plaintiffs did not understand that Chicago Title had provided representation for the Jalberts, by Cohen & Wolf, for the Warren Enterprises litigation, in lieu of the defendant.   If the defendant had not misled them, they would not have continued to believe that his legal services were needed for that matter and would not have agreed that he was entitled to be paid.

In addition, the court is unpersuaded that the defendant's bill for $69,738.90 to Chicago Title, dated February 16, 2008 (Plff.Exh. 15) represents a reasonable summary of the extent of his legal services or their value.   Rather, it contains a substantial inflating of the time spent by the defendant on this matter.   That bill includes a list of services, including “15 meetings with client regarding status of case and potential for settlement;  ․ multiple telephone conversations with Neil Marcus regarding potential for settlement;  ․ multiple telephone conversations with Tom Gugliotti [opposing counsel].”   In view of the fact that the defendant misled the Jalberts concerning his representation of them, the court is unpersuaded that such activities by the defendant were warranted or that their extent was accurately described.

The defendant's credibility, including his statements made in documents related to billing, is undermined by his acknowledged back-dating of a retainer agreement with the Jalberts.   In his testimony, the defendant stated that he prepared a retainer agreement for the Jalberts to sign in March 2007 (Plff.Exh. 7), but dated it in February 2005, more than two years earlier.   See Tr., March 12, 2013, pp. 134–35.   He stated that he did so “[b]ecause I felt it would be helpful to have a memorialization of our agreement in the beginning of the file for purposes of our ultimate claim against Chicago Title.”   See Tr., March 12, 2013, p. 135.   Although the document states that Bruce Jalbert signed it in February 2005, the defendant testified that Bruce Jalbert signed it in March 2007.   See Tr., March 12, 2013, p. 135.

The defendant also testified that, at the time he wrote this letter, he knew that Chicago Title had provided a defense for the Jalberts.   See Tr., March 12, 2013, p. 137.   The letter stated, in its first sentence, “Chicago Title may not provide you with a defense against the claims brought by Jean Elin to cross your property.”   This letter also does not mention the barter agreement which was in effect when the defendant wrote it.   See Tr., March 13, 2013, pp. 10–11.   According to the defendant, he drafted the letter in March 2007 to be correct as of February 2005.   His fabrication of the document undermines the defendant's credibility.

Other examples of misleading documents created by the defendant also undermine his credibility and his arguments about being entitled to be paid for legal services.   He prepared a letter addressed to the Jalberts, dated May 30, 2007, in which he stated that he “and his paralegal combined have in excess of 460 hours at our regular rate per hour for my time and $55 dollars per hour for my paralegal's time resulting in a total more than $140,000 for my time and about $25,000 for paralegal time and expenses to date.”   See Plff. Exh. 10.   In the next paragraph, the defendant stated that he and the Jalberts had “come to a resolution for a flat fee of $130,000 for all legal fees to date, and $25,000 for paralegal fees and expenses.”   The last sentence of this letter states, “I look forward to receiving your first payment in this regard.”

At trial, the defendant testified that his paralegal on the case was Pamela Jalbert.   See Tr., March 13, 2013, p. 12.   Thus, the letter was a bill to the Jalberts which included charging them for Pamela Jalbert's own work.   In contradiction to his own letter, the defendant testified that “It was not my intention that the Jalberts would be paying my legal fees out-of-pocket at any time.”   See Tr., March 13, 2013, p. 13.   The court does not credit the statement in the letter or the defendant's trial testimony that an agreement was reached for payment to the defendant of a flat fee.

The misleading statements in his May 30, 2007 letter were followed five days later by the defendant's June 4, 2007 letter and statement of account to the Jalberts for professional services from February 19, 2005 to February 12, 2007.   See Plff. Exhs. 11–12, respectively.²

In the June 4, 2007 letter, the defendant stated, incredibly, that he reduced the total time reflected since the fees were escalating “at a very rapid pace.”   The statement again billed for paralegal time.   In contrast to the May 30, 2007 letter, which billed for in excess of 460 hours of attorney and paralegal time, the June 4, 2007 statement billed for 877.75 hours of the defendant's time, an increase of over 410 hours.   The defendant stated that he did not have contemporaneous time records to support either amount;  instead, he leafed through the file and came up with a number.   See Tr., March 14, 2013, pp. 22–23.   The defendant's testimony that both numbers were “reasonably accurate,” Tr., March 14, 2013, p. 25, lacks credibility.   Similarly lacking in credibility is the sheer amount of the bill, $209,445.97.

Under these circumstances, the plaintiffs' expressions to the effect that they wanted the defendant to be paid (see Deft. Exh. I, April 12, 2008 email from Pamela Jalbert to Marcus, complaining of “Chicago Title[']s unwillingness to honor their commitments” and requesting payment of $69,000 to the defendant;  Deft. Exh. J, April 8, 2012 emails to defendant), and their proposal of deeding a portion of their property to him as a means of compensating him for legal services, do not amount to admissions as to the value of the defendant's work for the Jalberts, or persuasive support for the defendant's arguments of entitlement to the funds at issue.   Rather, like the payment from the trust, they resulted from the defendant's efforts to mislead the plaintiffs.

Likewise unpersuasive are the defendant's references to Pamela Jalbert's May 6, 2008 email to the defendant (Deft Exh. Q), concerning the defendant's legal bills and returning money to the trust.   Due to the defendant's misleading conduct, at the time it was written, she did not understand that Chicago Title had been representing the Jalberts.   Similarly, as Marcus expressed in his testimony, at around this time, the plaintiffs' relationship with the defendant had deteriorated.   The court is unpersuaded by the defendant's contentions that the plaintiffs' demand for the return of their money is evidence that the $85,000 had not been provided in 2007 to show Chicago Title that the Jalberts had paid the defendant, and was a payment to the defendant for a fee to which he was entitled.

Similarly, the $50,000 which the defendant received from the Warren Enterprises litigation settlement also resulted from the defendant's deceptive conduct, in which he took advantage of his fiduciary relationship with the plaintiffs, and their friendship.

By clear and convincing evidence, the plaintiffs have proved that the defendant converted the $85,000 which he sought from the trust, which was paid to him, and which he never returned.   By clear and convincing evidence, the court finds that the defendant also converted the $50,000 from the Warren Enterprises litigation settlement.

B

Count Two–Statutory Theft

In count two of their complaint, the plaintiffs allege that the defendant committed statutory theft in violation of General Statutes § 52–564.   “[S]tatutory theft under ․ § 52–564 is synonymous with larceny [as defined in] General Statutes § 53a–119;  ․ and the definition of larceny includes various fraudulent methods of taking property from its owner.”  (Citation omitted;  footnote omitted;  internal quotation marks omitted.)  Stuart v. Stuart, 297 Conn. 26, 41, 996 A.2d 259 (2010).  “Pursuant to § 53a–119, [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or [withholds] such property from [the] owner.”  (Internal quotation marks omitted.)  Hi–Ho Tower, Inc. v. Com–Tronics, Inc., 255 Conn. 20, 44, 761 A.2d 1268 (2000).   The standard of proof applicable to statutory theft “is the preponderance of the evidence standard.”  Stuart v. Stuart, supra, 297 Conn. 44.

“Statutory theft ․ requires an element over and above what is necessary to prove conversion, namely, that the defendant intentionally deprived the complaining party of his or her property.”  Mystic Color Lab, Inc. v. Auctions Worldwide, LLC, supra, 284 Conn. 418–19.

As discussed above, the court has found the defendant to be liable for conversion.   The evidence is also clear and convincing that the defendant intentionally and wrongfully took and withheld $135,000 from the plaintiffs.   The defendant intentionally misled them concerning the $85,000 payment from the trust.   The defendant intentionally misled the plaintiffs into believing that his services were needed to defend them in the Warren Enterprises litigation, and that he was entitled to be paid therefor, causing them also to agree that he would receive $50,000 from the settlement.   He intentionally deprived them of those funds as well.   See Kosiorek v. Smigelski, 138 Conn.App. 695, 713–14, 54 A.3d 564 (2012), cert. denied, 308 Conn. 901, 60 A.3d 287 (2013) (wrongful withholding of amount of unreasonable legal fee is evidence of statutory theft).   Accordingly, the court finds the defendant liable for statutory theft.

C

Count Three–CUTPA

The plaintiffs' third count is premised on the Connecticut Unfair Trade Practices Act, General Statutes § 42–110a et seq.  (CUTPA).  “[General Statutes § ]42–110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.   It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair:  (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] ․ All three criteria do not need to be satisfied to support a finding of unfairness.   A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three ․ Thus a violation of CUTPA may be established by showing either an actual deceptive practice ․ or a practice amounting to a violation of public policy ․ In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice ․” (Internal quotation marks omitted.)   Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 350–51, 994 A.2d 153 (2010).   The plaintiffs' burden of proof as to their CUTPA claim is by the preponderance of the evidence.   See Stuart v. Stuart, supra, 297 Conn. 38.

“In Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 520–21, 461 A.2d 938 (1983), our Supreme Court concluded that not all aspects relating to the conduct of the profession of law were excluded from the purview of CUTPA.   More recently, we explained:  ‘In general, CUTPA applies to attorney conduct, but only as to the entrepreneurial aspects of legal practice.’   “ Kosiorek v. Smigelski, supra, 138 Conn.App. 711–12.

“[T]he most significant question in considering a CUTPA claim against an attorney is whether the allegedly improper conduct is part of the attorney's professional representation of a client or is part of the entrepreneurial aspect of practicing law.”  Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 781, 802 A.2d 44 (2002).   The “entrepreneurial” exception is applicable, for example, to an attorney's advertising, billing, bill collection, and solicitation of business.   See id., 782.

In Kosiorek v. Smigelski, supra, 138 Conn.App. 712, there was evidence that the defendant attorney “failed to provide [his client] with the entire fee agreement or to explain the nature of the contingency agreement at the time it was executed.   Additionally, there was evidence that the defendant had not kept accurate time records, paid himself an unreasonable fee and refused to return the disallowed fee to the estate.”   Such evidence “related to the entrepreneurial aspects of legal practice” and was properly submitted for the jury's consideration of the CUTPA claim.  Id.

As discussed above, the court has found the defendant to be liable for conversion and civil theft of the $85,000 which he received from the trust, and of the $50,000 he received from the settlement of the Warren Enterprises litigation, both ostensibly for legal fees, as a result of his misleading conduct.   The entrepreneurial exception is applicable to both sums, as these damages related to the defendant's fee agreement with the Jalberts, and were unreasonable fees which he received but did not return.   Such conduct violated CUTPA in that it was unfair, immoral, unethical, oppressive, and unscrupulous, and the plaintiffs suffered ascertainable losses of money as a result.³

In addition, pursuant to the barter agreement, the defendant received the value of Bruce Jalbert's construction services, in the amount of $84,750.   See Plff. Exh. 17.   The value of these services was not disputed at trial.

The defendant acknowledges that he had a barter agreement with Bruce Jalbert.   See defendant's post-trial brief, p. 11.   However, he disagrees with the plaintiff's contentions as to its terms and whether it continued until the settlement of the Warren Enterprises litigation.

Under the barter agreement, the defendant agreed to pay for Bruce Jalbert's construction services if Chicago Title provided a defense to the Jalberts.   Tr., March 12, 2013, pp. 24–25.   As discussed above, the defendant misled the plaintiffs so that they were not aware that Marcus was defending them on behalf of Chicago Title.

The court credits the plaintiffs' contentions that the barter agreement involved an exchange of services based on hours expended, without, as contended by the defendant, adjustment by an hourly rate differential which recognized that the defendant's hourly rates were considerably higher than Bruce Jalbert's hourly rates.   This was an arrangement between close friends, where the defendant previously had represented the plaintiffs in the purchase of their home, when they obtained the title insurance recommended by the defendant.

The defendant argues that the barter agreement did not continue to the end, asserting that, if it had continued, then Bruce Jalbert would not have questioned the fees for the defendant's work which were being accumulated, would not have wondered how he was going to pay the defendant's bills, and would not have offered to pay the defendant from a sale of a parcel of their property to the defendant at a reduced price.   See defendant's post-trial brief, pp. 12–14.

The evidence before the court shows that the plaintiffs, who were not as well-educated as the defendant, an attorney, were misled by the defendant, who, at the time of the events at issue, was their friend, attorney and fiduciary.   It is evident that he misled them to believe that Chicago Title was not providing a defense and that he had expended vast hours on their behalf in their defense, so that they were under the belief that what Bruce Jalbert provided by way of construction services was far less than what was provided by the defendant.   See Tr., March 14, 2013, pp. 146, 160 (Bruce Jalbert testimony that, although the defendant had not presented a bill, defendant had worked for a number of years and every time he spoke to the plaintiffs the dollar amount would go up exponentially, so that eventually they were told that the defendant had “invested” up to $400,000, leading to concern that Jalberts would have to sell their house).

The defendant never paid for Bruce Jalbert's construction services.   As a result, the plaintiffs suffered an additional ascertainable loss of $84,750.   The entrepreneurial exception is applicable to this sum also, as these damages related to the defendant's fee agreement with the Jalberts, and amounted to unreasonable fees which he received but did not earn by providing legal services in exchange therefor.   This conduct also violated CUTPA in that it was unfair, immoral, unethical, oppressive, and unscrupulous.

D

Fraud

The plaintiffs' fraud claims are based on conduct which is discussed above.   “The essential elements of an action in fraud, as we have repeatedly held, are:  (1) that a false representation was made as a statement of fact;  (2) that it was untrue and known to be untrue by the party making it;  (3) that it was made to induce the other party to act on it;  and (4) that the latter did so act on it to his injury.”  (Internal quotation marks omitted.)  Updike, Kelly & Spellacy, P.C v. Beckett, 269 Conn. 613, 643, 850 A.2d 145 (2004).  “A party alleging fraudulent misrepresentation must prove the existence of the first three of [the] elements by a standard higher than the usual fair preponderance of the evidence, which higher standard we have described as clear and satisfactory or clear, precise and unequivocal.”  (Internal quotation marks omitted.)  Wallenta v. Moscowitz, 81 Conn.App. 213, 220, 839 A.2d 641, cert. denied, 268 Conn. 909, 845 A.2d 414 (2004).  “ ‘Clear and satisfactory’ evidence is the equivalent to ‘clear and convincing’ evidence.”  (Internal quotation marks omitted.)  Id.

“Although the general rule is that a misrepresentation must relate to an existing or past fact, there are exceptions to this rule, one of which is that a promise to do an act in the future, when coupled with a present intent not to fulfill the promise, is a false representation.”  Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 515, 271 A.2d 69 (1970).

In their post-trial memorandum, the plaintiffs seek damages for fraud for three separate claimed fraudulent representations.   Two of these relate to promises by the defendant to do acts in the future.   They contend that he falsely informed them that if they transferred $135,000 to him, he would return the funds at the end of the litigation ($85,000 from the trust and $50,000 from the settlement).   They also contend that, by falsely informing the plaintiffs that Chicago Title had refused to defend their interests, the defendant fraudulently induced Bruce Jalbert to perform labor for the defendant's benefit, without compensation.   See plaintiffs' post-trial memorandum, pp. 29–30.

As to the first two, the allegation concerning the payment from the trust is pleaded as a promise.   See count four, ¶ 22d.   The court is unpersuaded that the plaintiffs have proved that the defendant had a present intent not to fulfill the promise when it was made.   As to the second, the allegation concerning the $50,000 not returned from the settlement is not pleaded as a fraudulent misrepresentation.   See count four, ¶ 7k.  “The plaintiff cannot recover upon a cause of action not alleged in its complaint.”  United Construction Corporation v. Beacon Construction Co., 147 Conn. 492, 496, 162 A.2d 707 (1960).

Concerning the third fraud claim, the plaintiffs did not allege in the fourth count that the defendant falsely informed them that Chicago Title had refused to defend them, when that was untrue and he knew it to be untrue.   Rather, they alleged that the defendant represented that he would accept payment in kind from Bruce Jalbert, but later represented he would not.   As stated above, the plaintiffs may not recover on a claim which was not pleaded.

E

Larceny By False Pretenses

In count five, based on the same allegations, all of which are incorporated by reference, the plaintiffs claim that the defendant is liable for larceny by false pretenses.⁴  The court discussed the elements of larceny above in part B concerning statutory theft.  “The elements that the plaintiffs must prove to obtain treble damages under the civil theft statute, § 52–564, are the same as the elements required to prove larceny, pursuant to General Statutes § 53a–119.  Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770–71, 905 A.2d 623 (2006).”  Sullivan v. Delisa, 101 Conn.App. 605, 619–20, 923 A.2d 760, cert. denied, 283 Conn. 908, 928 A.2d 540 (2007).

The same analysis is applicable to count five.   The evidence is clear and convincing that the defendant is liable for the $135,000 which he intentionally and wrongfully obtained and withheld from the plaintiffs.

F

Damages, Interest, and Attorneys Fees

As discussed above, as to counts one and two, for conversion and civil theft, the plaintiffs have proved that they suffered actual damages in the total amount of $135,000 ($85,000 plus $50,000).   The court is unpersuaded by the defendant's argument (see defendant's post-trial brief, p. 21) that the $23,500 paid to the Jalberts from the Warren Enterprises litigation settlement reduces their claim concerning the $85,000.   As discussed above, the repayment to the defendant of funds loaned for the purchase of a motorcycle by Bruce Jalbert were deducted from the $50,000 which otherwise would have been paid to the plaintiffs from the $100,000 received from the title companies as part of the settlement of the Warren Enterprises litigation.

As to count two, the plaintiffs seek treble damages pursuant to General Statutes § 52–564, for the defendant's conversion of $135,000.   As discussed above, § 52–564 provides, “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”   Under this mandatory language, where liability is found, the damages are to be trebled.   See Stuart v. Stuart, supra, 297 Conn. 53 n.14 (§ 52–564 contains mandatory language).   Accordingly, as to count two, concerning statutory theft, the plaintiffs are awarded treble damages, $405,000 ($135,000 x 3).

The plaintiffs also seek an award of prejudgment interest pursuant to General Statutes § 37–3a, which provides, in relevant part, “interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ․ as damages for the detention of money after it becomes payable.”   A decision concerning “whether to grant interest under § 37–3a is primarily an equitable determination ․” Sosin v. Sosin, 300 Conn. 205, 227, 14 A.3d 307 (2011).  “[P]rejudgment interest is awarded in the discretion of the trial court to compensate the prevailing party for a delay in obtaining money that rightfully belongs to him.”  (Internal quotation marks omitted.)  Northrop v. Allstate Ins. Co., 247 Conn. 242, 254–55, 720 A.2d 879 (1998).

“A trial court must make two determinations when awarding compensatory interest under § 37–3a:  (1) whether the party against whom interest is sought has wrongfully detained money due the other party;  and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated.”  Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 239 Conn. 708, 735, 687 A.2d 506 (1997).

“[T]he court's determination [as to whether interest should be awarded under § 37–3a] should be made in view of the demands of justice rather than through the application of any arbitrary rule ․ Whether interest may be awarded depends on whether the money involved is payable ․ and whether the detention of the money is or is not wrongful under the circumstances.”   (Internal quotation marks omitted.)  Sosin v. Sosin, supra, 300 Conn. 229.   The term “wrongful” “has been construed to mean ‘without ․ legal right ․’ “ Id., 244 n.25. A finding of wrongfulness under § 37–3a “does not require the trial court to assess blameworthiness ․” Id.

“[T]he primary purpose of § 37–3a ․ is not to punish persons who have detained money owed to others in bad faith but, rather, to compensate parties that have been deprived of the use of their money.”  (Footnote omitted.)   Id., 230.   Even where money is withheld on the basis of a good faith belief by a party that he was entitled thereto, “the trial court [is] not foreclosed from awarding interest pursuant to § 37–3a.”  Id.

“[A]n interest award is limited to cases in which the damage is of a sort [that] could reasonably be ascertained by due inquiry and investigation on the date from which the interest is awarded.”  (Internal quotation marks omitted.)  Id., 234–35.

Where liability has been found pursuant to General Statutes § 52–564, the Appellate Court has affirmed trebling the prejudgment interest awarded.   “Prejudgment interest on money wrongfully withheld from the owner is a proper, albeit discretionary, element of a plaintiff's damages ․ General Statutes 52–564 provides that if the defendant stole the plaintiff's property, he ‘shall pay the owner treble his damages.’   We see no reason to carve out of those damages, as a matter of law, the prejudgment interest element for the benefit of a defendant who has been found liable pursuant to General Statutes 52–564.”  (Citation omitted.)  Lauder v. Peck, 11 Conn.App. 161, 167–68, 526 A.2d. 539 (1987).

As discussed above, the court has found that the defendant is liable for conversion and civil theft concerning the $85,000 from the trust and the $50,000 from the Warren Enterprises litigation settlement.   His retention of those monies was wrongful.   In the exercise of its discretion, an award of prejudgment interest, to compensate the plaintiffs for the delay in obtaining money that rightfully belongs to them, is appropriate.

Although the plaintiffs contend that Bruce Jalbert transferred the $85,000 from the trust to the defendant on May 31, 2007 and interest should be awarded thereon from that date, they also acknowledge that they expected that those funds would be returned at the end of the Warren Enterprises litigation.   See plaintiff's post-trial memorandum, p. 34.   As to the $50,000 from the settlement, they contend that interest should be awarded from March 27, 2008, the date when the settlement funds were transferred.   See Plff. Exh. 36.   The court finds that interest should be awarded from March 27, 2008 on both sums.

Accordingly, pursuant to § 37–3a, the court awards treble interest, at the rate of 10 percent per annum, from March 27, 2008, for the defendant's wrongful detention of $135,000.

As to count three, as discussed above, the court has found that the defendant is liable and that the plaintiffs proved ascertainable losses in the total amount of $219,750, including $84,750 for Bruce Jalbert's construction services.   Prejudgment interest at the statutory rate of ten percent (10%) is awarded.   As discussed above, under the barter agreement, the defendant agreed to pay for Bruce Jalbert's work if Chicago Title provided a defense.   After the defense was provided, the defendant's failure to pay for the construction services was wrongful.   It is unclear when each project was completed, but the work was done between 2005 and 2007.   Marcus filed his appearance to defend the Jalberts in March 2007.   Interest on the $84,750 is awarded from January 1, 2008.   By that date, all of the construction work had been done.

Also as to count three, the plaintiffs seek awards of attorneys fees and punitive damages.   Pursuant to General Statutes § 42–110g(a) 5 and (d),⁶ a prevailing plaintiff in a CUTPA action may be awarded punitive damages and reasonable attorneys fees.

“A court may exercise its discretion to award punitive damages to a party who has suffered any ascertainable loss pursuant to CUTPA.   See General Statutes § 42–110g(a).   In order to award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights ․ [A]warding punitive damages and attorneys fees under CUTPA is discretionary ․ Further, [i]t is not an abuse of discretion to award punitive damages based on a multiple of actual damages.”   (Citations omitted;  internal quotation marks omitted.)  Votto v. American Car Rental, Inc., 273 Conn. 478, 485–86, 871 A.2d 981 (2005).

Here, as discussed above, under General Statutes § 52–564, the legislature has provided for treble damages and the court has awarded them.   In addition, the court has trebled the award for prejudgment interest.   In the exercise of its discretion, since treble damages are awarded, and, as discussed below, attorneys fees are warranted also, the court declines to award punitive damages.   See Kosiorek v. Smigelski, supra, 138 Conn.App. 712 n.16 (trial court declined to award punitive damages in addition to treble damages and attorneys fees).

“The public policy underlying CUTPA is to encourage litigants to act as private attorneys general and to engage in bringing actions that have as their basis unfair or deceptive trade practices ․ In order to encourage attorneys to accept and litigate CUTPA cases, the legislature has provided for the award of attorneys fees and costs ․ [T]he amount of attorneys fees that the trial court may award is based on the work reasonably performed by an attorney and not on the amount of recovery ․ Once liability has been established under CUTPA, attorneys fees and costs may be awarded at the discretion of the court.”  (Citations omitted;  internal quotation marks omitted.)  Carrillo v. Goldberg, 141 Conn.App. 299, 316–17, 61 A.3d 1164 (2013).

In the exercise of its discretion, the court will award attorneys fees.   By June 26, 2013, the plaintiffs may file a motion for a supplemental judgment of attorneys fees and expenses with a detailed affidavit of attorneys fees and expenses.   Any response thereto by the defendant shall be filed by July 10, 2013.   Thereafter, the court will schedule a hearing on the award of attorneys fees and costs.⁷

“[A] plaintiff may be compensated only once for his just damages for the same injury.”  (Internal quotation marks omitted.)  Mahon v. B.V. Unitron Mfg., Inc., 284 Conn. 645, 661, 935 A.2d 1004 (2007).  “[T]he rule precluding double recovery is a simple and time-honored maxim that [a] plaintiff may be compensated only once for his just damages for the same injury ․ Connecticut courts consistently have upheld and endorsed the principle that a litigant may recover just damages for the same loss only once.   The social policy behind this concept is that it is a waste of society's economic resources to do more than compensate an injured party for a loss and, therefore, that the judicial machinery should not be engaged in shifting a loss in order to create such an economic waste.”  (Internal quotation marks omitted.)  Id., 663.

Accordingly, although the plaintiffs also have prevailed on count five, and damages are awarded in the principal amount of $135,000 ($85,000 plus $50,000) on this count, the same losses are at issue as discussed above.   The plaintiffs may not recover for the same loss more than once.   As set forth below, the court itemizes the damages awarded.

CONCLUSION

For the reasons stated above:

1. Judgment may enter for the plaintiffs and against the defendant on counts one, two, three and five.   Judgment may enter for the defendant and against the plaintiffs on count four.

2. Damages are awarded to the plaintiffs on counts one and five in the amount of $135,000.   As to count two, trebled damages are awarded in the amount of $405,000.   Trebled interest is awarded also, in the amount of $210,953.97.⁸

3. Damages are awarded to the plaintiffs on count three in the amount of $219,750.   Prejudgment interest is awarded as to $84,750 of this amount, in the amount of $46,138.14.⁹

4. Eliminating duplicative damage awards results in total damages awarded as follows:

$615,953.97 (including trebled interest) plus $130,888.14 (including interest):

Total Damages:  $746,842.11.

5. By June 26, 2013, the plaintiffs may file a motion for a supplemental judgment attorneys fees and expenses with a detailed affidavit of attorneys fees and expenses.   Any response thereto by the defendant shall be filed by July 10, 2013.   Thereafter, the court will schedule a hearing concerning the motion.

It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. Section 52–564 provides, “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages..  FN1. Section 52–564 provides, “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.

FN2. The defendant testified that both billing statements were sent to the Jalberts.   See Tr., March 13, 2013, p. 26;  March 14, 2013, pp. 28–29.   However, the Jalberts testified that they did not see billing statements from the defendant until after they commenced suit against him.   As discussed, the defendant's credibility and claims of entitlement to retain funds due to legal services rendered are undermined by these documents..  FN2. The defendant testified that both billing statements were sent to the Jalberts.   See Tr., March 13, 2013, p. 26;  March 14, 2013, pp. 28–29.   However, the Jalberts testified that they did not see billing statements from the defendant until after they commenced suit against him.   As discussed, the defendant's credibility and claims of entitlement to retain funds due to legal services rendered are undermined by these documents.

FN3. The defendant argues that the claim concerning the $50,000 payment is not included in count three's allegations of CUTPA violations.   However, count three incorporates by reference the allegations of count two.   See count three, ¶ 1.   In count two, which alleges that the defendant is liable for civil theft, paragraph 7k of count one, which states that the defendant “received $100,000 in settlement funds in the litigation, but only returned $50,000 to Plaintiffs,” is incorporated by reference..  FN3. The defendant argues that the claim concerning the $50,000 payment is not included in count three's allegations of CUTPA violations.   However, count three incorporates by reference the allegations of count two.   See count three, ¶ 1.   In count two, which alleges that the defendant is liable for civil theft, paragraph 7k of count one, which states that the defendant “received $100,000 in settlement funds in the litigation, but only returned $50,000 to Plaintiffs,” is incorporated by reference.

FN4. In the defendant's post-trial brief, page 3, he argues, citing Practice Book § 10–3, that count five does not allege a statute.   Any such contention was waived.   See Thompson & Peck, Inc. v. Harbor Marine Contracting Corp., 203 Conn. 123, 132, 523 A.2d 1266 (1987)..  FN4. In the defendant's post-trial brief, page 3, he argues, citing Practice Book § 10–3, that count five does not allege a statute.   Any such contention was waived.   See Thompson & Peck, Inc. v. Harbor Marine Contracting Corp., 203 Conn. 123, 132, 523 A.2d 1266 (1987).

FN5. Section 42–110g(a) provides, “Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42–110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages.   Proof of public interest or public injury shall not be required in any action brought under this section.   The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.”.  FN5. Section 42–110g(a) provides, “Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42–110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages.   Proof of public interest or public injury shall not be required in any action brought under this section.   The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.”

FN6. General Statutes § 42–110g(d) provides, in pertinent part, “In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys fees based on the work reasonably performed by an attorney and not on the amount of recovery.”.  FN6. General Statutes § 42–110g(d) provides, in pertinent part, “In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys fees based on the work reasonably performed by an attorney and not on the amount of recovery.”

FN7. Although the plaintiffs seek an award of attorneys fees under each count, they presented argument for an award of attorneys fees only as to count three, the CUTPA count.   Accordingly, the court does not consider whether, having prevailed on other counts, the plaintiffs are entitled to attorneys fees awards under those counts.   See Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 87, 942 A.2d 345 (2008)..  FN7. Although the plaintiffs seek an award of attorneys fees under each count, they presented argument for an award of attorneys fees only as to count three, the CUTPA count.   Accordingly, the court does not consider whether, having prevailed on other counts, the plaintiffs are entitled to attorneys fees awards under those counts.   See Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 87, 942 A.2d 345 (2008).

FN8. Calculated at the rate of ten percent (10%) per annum, from March 27, 2008.   The per diem rate is $36.99 ($135,000 x .10 divided by 365), which, trebled, equals $110.97 per day. $110.97 x 1901 days equals $210,952.97..  FN8. Calculated at the rate of ten percent (10%) per annum, from March 27, 2008.   The per diem rate is $36.99 ($135,000 x .10 divided by 365), which, trebled, equals $110.97 per day. $110.97 x 1901 days equals $210,952.97.

FN9. Calculated at the rate of ten percent (10%) per annum, from January 1, 2008.   The per diem rate is $23.22 ($84,750 x .10 divided by 365). $23.22 x 1987 days equals $46,138.14..  FN9. Calculated at the rate of ten percent (10%) per annum, from January 1, 2008.   The per diem rate is $23.22 ($84,750 x .10 divided by 365). $23.22 x 1987 days equals $46,138.14.

Shapiro, Robert B., J.