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

MEMORANDUM OF DECISION ON POST–TRIAL MOTIONS

This matter is before the court concerning the plaintiffs' post-trial motions for additur (# 175) and for attorneys fees (# 176).   The motion for additur appeared on the short calendar on July 1, 2013 as a take papers matter.   The defendant filed an objection (# 179), to which the plaintiffs replied (# 180).

The defendant also filed an objection to the motion for attorneys fees (# 182), to which the plaintiffs replied (# 183).   The court held a hearing on the motion for attorneys fees on July 24, 2013.   After consideration of the motions, the court issues this memorandum of decision.

I

Motion For Additur

Previously, the court issued its memorandum of decision after trial, dated June 11, 2013 (# 174) (decision).   The background of this matter, the court's findings, and the amounts awarded as damages are set forth therein.

In their motion for additur, the plaintiffs move the court to award interest of 8% on the amount recovered, pursuant to General Statutes § 52–192a and Practice Book § 17–18.   In his objection, in view of the interest to be awarded under General Statutes § 52–192a, the defendant requests the court to exercise its discretion in determining whether to award interest to the plaintiffs pursuant to General Statutes § 37–3a.   In reply, the plaintiffs contend that the demands of justice do not weigh against an award of prejudgment interest pursuant to § 37–3a.

Section 52–192a(c) provides, in relevant part, “[a]fter trial the court shall examine the record to determine whether the plaintiff made an offer of compromise which the defendant failed to accept.   If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain specified in the plaintiff's offer of compromise, the court shall add to the amount so recovered eight per cent annual interest on said amount ․ The interest shall be computed from the date the complaint in the civil action ․ was filed with the court if the offer of compromise was filed not later than eighteen months from the filing of such complaint ․”

Here, at the time the court rendered its decision, June 11, 2013, the record did not reflect the amount of the plaintiff's offer of compromise.   The notice of plaintiffs' offer of compromise, dated March 24, 2009 (# 128) (notice) did not specify the amount thereof.   In the motion for additur, for the first time, the plaintiffs advised the court of the amount of their offer of compromise, $250,000.00, by filing the offer of compromise which they apparently served on the defendant in March 2009, but did not then file with the court.   See Exhibit A to motion for additur.

Under these circumstances, in their motion, the plaintiffs set forth an unwarranted assertion, that the court's decision did not follow § 52–192a and Practice Book § 17–18: ¹  “However, the Court's award of damages did not include 8% interest on the amount recovered from the date the Complaint was filed, as required by the mandatory language of General Statutes 52–192a and Practice Book § 17–18.”   See motion for additur, page 1. Since the amount of the offer of compromise was not specified in the plaintiffs' notice, at the time its decision was issued, there was no way for the court to ascertain from the record whether the plaintiffs had recovered an amount equal to or greater than the sum certain specified in the offer of compromise.   This issue was not addressed in the court's decision.   See decision, pages 23–30.

“[A]n award of interest under § 52–192a is mandatory, and the application of § 52–192a does not depend on an analysis of the underlying circumstances of the case or a determination of the facts ․ The statute is admittedly punitive in nature ․ It is the punitive aspect of the statute that effectuates the underlying purpose of the statute and provides the impetus to settle cases ․ The purpose of § 52–192a is to encourage pretrial settlements and, consequently, to conserve judicial resources ․ [T]he strong public policy favoring the pretrial resolution of disputes ․ is substantially furthered by encouraging defendants to accept reasonable offers of judgment ․ Section 52–192a encourages fair and reasonable compromise between litigants by penalizing a party that fails to accept a reasonable offer of settlement ․ In other words, interest awarded under § 52–192a is solely related to a defendant's rejection of an advantageous offer to settle before trial and his subsequent waste of judicial resources.”  (Citation omitted;  internal quotation marks omitted.)  Dilieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 153, 998 A.2d 730 (2010).

In its decision, the court awarded prejudgment interest pursuant to General Statutes § 37–3a.   In contrast to § 52–192a, § 37–3a 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).

“[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 ․” (Internal quotation marks omitted.)  Sosin v. Sosin, supra, 300 Conn. 229.  “[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.

Where the court has awarded mandatory offer of judgment interest pursuant to § 52–192a, the court may decline to award interest under § 37–3a if it concludes that “a further award of interest pursuant to § 37–3a would not [be] equitable.”  Loomis Institute v. Windsor, 234 Conn. 169, 182, 661 A.2d 1001 (1995).   See Flynn v. Kaumeyer, 67 Conn.App. 100, 105, 787 A.2d 37 (2001) (same).   In Flynn v. Kaumeyer, supra, the court clarified that its statements in Gillis v. Gillis, 21 Conn.App. 549, 554–55, 575 A.2d 230, cert. denied, 215 Conn. 815, 576 A.2d 544 (1990) to the effect, “that the total of money damages, including § 37–3a interest, recovered by a plaintiff is the appropriate amount to be considered when determining whether the amount of the plaintiff's recovery equals or is greater than the sum certain stated in the plaintiff's offer of judgment” were dicta.  Flynn v. Kaumeyer, supra, 67 Conn.App. 105.

“The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.”  (Internal quotation marks omitted.)  Wasko v. Manella, 269 Conn. 527, 542, 849 A.2d 777 (2004).   In determining whether a result is equitable “a windfall should be avoided if possible.”  Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 354, 579 A.2d 1054 (1990).   In making such an assessment, “a trial court may consider all relevant circumstances to ensure that complete justice is done.”  Gulack v. Gulack, 30 Conn.App. 305, 317, 620 A.2d 181 (1993).

Here, the plaintiffs were awarded treble damages for civil theft pursuant to General Statutes § 52–564, which “is an extraordinary statutory remedy.”   Vekris v. Pass, Superior Court, judicial district of Hartford–New Britain at New Britain, Docket No. CV 9101–1005 (November 18, 1991, Berger, J.).

The plaintiffs seek offer of judgment interest in the amount of $288,915.35, based on the amount awarded in the decision, $746,842.11, which included treble damages pursuant to § 52–564 and treble interest awarded under § 37a–3a.   This would amount to a total of $1,035,757.46.

While the court is guided by appellate authority concerning § 52–192a, discussed above, the court is mindful also that windfall awards should be avoided.   If the court had been apprised of the amount of the offer of compromise before rendering its decision, it would have taken that into account in determining whether to award interest under § 37–3a.   See Loomis Institute v. Windsor, supra, 234 Conn. 182.   An award in the amount sought by the plaintiffs would be in excess of 4.5 times the amount of the plaintiffs' actual damages of $219,750 ($135,000 plus $84,750, without trebling $135,000).   Under these circumstances, such an award would amount to a windfall for the plaintiffs.

“[Section] 37–3a(a) provides for a maximum rate of interest of 10 percent, with discretion afforded to the trial court to order interest at a lesser rate ․ [U]nder § 37–3a(a), an interest rate of less than 10 percent is presumptively valid, and therefore will be upheld, unless the party challenging the rate set by the court can demonstrate that it represents an abuse of discretion.”  (Citation omitted;  emphasis in original.)  Ballou v. Law Offices Howard Lee Schiff, P.C., 304 Conn. 348, 365, 39 A.3d 1075 (2012).

Thus, under § 37–3a, in the exercise of the court's discretion, interest awards may be made at rates of less than 10 percent.   In awarding prejudgment interest at the rate of four percent, the court in Weber v. FujiFilm Medical Systems U.S.A., Inc., Civil No. 3:10cv401 (JBA), 2013 WL 1149932 at *17 (D.Conn. March 19, 2013), stated, “Courts in Connecticut have recently found that awarding simple interest at a rate of four to six percent appropriately compensates a plaintiff for deprivation of the use of his or her money.” (collecting cases in state and federal court;  citing lower interest rates.)

In the exercise of its discretion, in view of all the circumstances, including the offer of compromise which the defendant did not accept, and recent awards of interest by other courts, as well as other factors previously discussed in the decision, the court concludes that its previous award of prejudgment interest should be modified, as explained below, and that an award of prejudgment interest using the rate of four percent is equitable and appropriately compensates the plaintiffs for the loss of the use of their money.

As explained in the decision, as to the $405,000 in damages awarded on count two, trebled interest is awarded.²  Prejudgment interest on that sum is awarded in the amount of $84,347.37.³  Prejudgment interest is also awarded as to $84,750 of the amount awarded as to count three, in the amount of $18,459.23.⁴

Also as explained in the decision, duplicative damages are eliminated, resulting in damages awarded of $489,347.37 (including trebled interest) and $103,209.23 (including interest):  Total damages:  $592,556.60.

In accordance with § 52–192a, since the plaintiffs have recovered an amount equal to or greater than the sum certain specified in their offer of compromise, the court adds to the amount so recovered eight per cent annual interest on that amount:  $229,108.32.⁵ This results in a total amount awarded of $821,664.92 ($592,556.60 plus $229,108.32).

II

Motion For Attorneys Fees

In its decision, page 28, the court determined that, in the exercise of its discretion, it would award attorneys fees under the Connecticut Unfair Trade Practices Act (CUTPA).   See Smith v. Snyder, 267 Conn. 456, 470, 839 A.2d 589 (2004) (court is vested with discretion to award reasonable attorneys fees under CUTPA).  General Statutes § 42–110g(d) provides that “[i]n 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.

“The statute contains no standard by which a court is to award attorneys fees, thus leaving it to the sole discretion of the trial court to determine if attorneys fees should be awarded and the amount of such award.”  Staehle v. Michael's Garage, Inc., 35 Conn.App. 455, 461, 646 A.2d 888 (1994).  “A court has few duties of a more delicate nature than that of fixing counsel fees.”   (Internal quotation marks omitted.)  Bobinski v. Kalinowski, 107 Conn.App. 622, 628, 946 A.2d 283, cert. denied, 289 Conn. 919, 958 A.2d 150 (2008).   “The court has the authority to formulate a fee award so as to ensure that a windfall is avoided.”   Mulligan v. Rioux, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 87 0336554 (October 9, 1996, Lavine, J.).

In their motion for attorneys fees, the plaintiffs seek an award of $261,394.74.   Citing their fee agreement with their attorneys (referred to below as the “fee agreement”) (see Exhibit 1 to plaintiffs' affidavit of attorneys fees (# 177) (affidavit), they assert that, utilizing the factors set forth in Rule 1.5(a) of the Rules of Professional Conduct, see Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 259 n.60, 270–72, 828 A.2d 64 (2003), an award of a 35% contingency fee represents a more reasonable award then one based on hours expended at hourly rates.   In the alternative, they seek an award on an hourly basis, based on the hourly rates of their counsel.

The defendant asserts that the fee agreement is inapplicable since an attorneys fee award under § 42–110(d) must be “based on the work reasonably performed by an attorney and not on the amount of recovery.”   See General Statutes § 42–110(d).

In his objection and at the hearing before the court, the defendant initially challenged certain aspects of the fees claimed by the plaintiffs in their attorney's invoice.   See affidavit, Exhibit 2 (invoice).   At the hearing, the parties then reached an agreement, that, if the court declined to make an award based on the fee agreement, then, based on the services provided, the plaintiffs' bill for attorneys fees would be reduced from $158,114.50, as set forth in their invoice, to $125,000.00, and that that amount was reasonable.   Therefore, the parties agreed that the court did not have to review the defendant's challenges to individual aspects of the amounts set forth in the invoice.

“The statutory mandate [in § 42–110g(d) ] precluding attorney fees from being based ‘on the amount of the recovery’ also indicates that the fee cannot be calculated on the basis of the contingency fee agreement between the plaintiff[s] and [their] counsel.   Such a calculation is precluded by the statutory mandate because by definition, a contingency fee is based on a percentage of ‘the amount of the recovery.’   See Fabri v. United Technologies International, Inc., 193 F.Sup.2d 480, 484 (D.Conn.2002), aff'd in part, 387 F.3d 109 (2d Cir.2004);  accord Schoonmaker v. Lawrence Brunoli, Inc., [supra, 265 Conn. 271 n. 77].”   Bridgeport Harbour Place I, LLC v. Ganim, Superior Court, Complex Litigation Docket at Waterbury, Docket No. CV X06 04 0184523 (October 31, 2008, Stevens, J.) [46 Conn. L. Rptr. 563].

“Riggio v. Orkin Exterminating Co., 58 Conn.App. 309, 753 A.2d 423, cert. denied, 254 Conn. 917, 759 A.2d 507 (2000), [cited by the plaintiffs,] is distinguishable.   In Riggio, the trial court considered the twelve factors under Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), to conclude that the amount of the one-third fee agreement was a reasonable fee under the circumstances of that case.  Id., 317–19.   Consequently, the Appellate Court's affirmance of the trial court's decision stands for the unremarkable proposition that in determining what is a reasonable attorney fee, the trial court does not abuse its discretion by considering a contingency fee agreement.”  Bridgeport Harbour Place I, LLC v. Ganim, supra, Superior Court, Docket No. CV X06 04 0184523, n.5. As discussed below, the fee agreement is a relevant consideration, along with other factors.

The court has considered the fee agreement and the Supreme Court's statements in Schoonmaker v. Lawrence Brunoli, Inc., supra, 265 Conn. 270–72, that “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 reasonable 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 ․ By contrast, if the trial court concludes that the agreement is, by its terms, unreasonable, it may exercise its discretion and award a reasonable fee in accordance with the factors enumerated in rule 1.5(a) of the Rules of Professional Conduct.”  (Citations omitted;  footnotes omitted;  internal quotation marks omitted.)

As to the first step of the analysis, concerning the terms of the agreement, the parties' fee agreement, dated June 17, 2008, twice states that, for the purposes of calculating the contingent fee, the amount awarded by the court for attorneys fees is to be added to the amount recovered in order to arrive at the 35% fee.   First, the fee agreement, page 1, provides that the plaintiffs and their counsel agreed that plaintiff's counsel shall receive a “fixed fee of Fifteen Thousand and 00/100 ($15,000.00) Dollars (‘Fixed Fee’), against, a contingent fee (the ‘Contingent Fee’) equal to Thirty–Five (35%) percent of the gross value of any and all money and/or property ․ collected or recovered on your behalf, ․ such Contingent Fee to be calculated prior to any reduction for any costs or expenses, which amount shall include any award for attorneys fees made by a Court or arbitration tribunal.”  (Emphasis in original.).

Second, the fee agreement also provides, at page 2, “Some cases also have the potential for an award of attorneys fees either by settlement or judgment.   If such an award is made, you agree to pay one of the following, at our sole discretion and option:

(a) The fee award paid by settlement or court order shall be paid entirely to [plaintiffs' counsel], and you hereby waive any and all right to any part of such fee, in which case we will waive our right to the Contingency Fee stated above and your sole obligation will be the attorneys fee awarded by settlement or court order;  or

(b) The Contingency Fee described above (calculated on the basis of your recovery including any separate attorney's fee award) will be paid to [plaintiffs' counsel].”  (Emphasis added.)

These terms present two threshold issues concerning the reasonableness of the fee agreement.   First, the fee agreement's “terms are circular.   The contingency fee definition depends in part on the court award, which the court cannot determine without assessing the reasonableness of the contingency fee.”  Burrell v. Yale University, Superior Court, Docket No. X02 CV 00 0159421, Complex Litigation Docket at Waterbury (May 26, 2005, Schuman, J.) (39 Conn. L. Rptr. 395).

The second threshold issue is the real rate of recovery built into the formula.   See id.   Assuming that the court were to award attorneys fees under the formula proposed, the amount of the judgment, as modified in accordance with the discussion above in part I, $821,664.92, when multiplied by 35%, results in a subtotal of $287,582.72.   Adding this sum to the amount of the judgment results in the sum of $1,109,247.60, which, multiplied again by 35%, yields a sum of $388,236.66.   That sum, divided by the amount of the judgment, amounts to an attorneys fee award at a rate of 47.25%.⁶ Such a rate is “unusually high.”  Burrell v. Yale University, supra, Superior Court, Docket No. X02 CV 00 0159421.   See Carmichael v. Stonkus, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 04 4001761 (September 27, 2010, Swienton, J.), cited by plaintiffs, finding a forty per cent (40%) contingency fee to be unreasonable.

The actual 47.25% rate discussed above is premised on “the questionable notion that the attorney should receive fees on a portion of the attorneys fees award ․” Burrell v. Yale University, supra, Superior Court, Docket No. X02 CV 00 0159421.

The court also has considered the reasonableness of the fee agreement in light of the factors recognized by Connecticut's appellate courts.  “[T]he 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 ․ 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.”  (Citation omitted;  internal quotation marks omitted.)  Ernst v. Deere & Co., 92 Conn.App. 572, 576, 886 A.2d 845 (2005).⁷

The plaintiffs argue that an attorneys fee award of over $260,000 is justified, based on the fee agreement, since they claim that complex factual issues were involved, and based on the extensive briefing in which they engaged.   They also assert that the award is justified in light of the defendant's dispute of each and every material fact at the three-day trial;  the able representation provided by defense counsel, who has been designated as one of the “Best Lawyers;” and the damages awarded after trial.

With regard to the reasonableness of the contingency fee sought by the plaintiffs, they assert that it was agreed to in light of the time their counsel anticipated devoting to the matter, which the defendant/attorney indicated would be vigorously contested;  they were unable to fund the litigation on an ongoing basis;  and collectability was questionable.   They also note that the case involved extensive research, substantial discovery, motion practice, delays, a bankruptcy filing, and trial preparation.

The defendant asserts that his counsel's reputation has no bearing on the award of attorneys fees;  that this case was not complicated factually, but depended on issues of credibility;  and that it did not involve complex legal issues.   In addition, he noted that only four witnesses testified at trial.

As the Commentary to Rule 1.5 of the Rules of Professional Conduct states, the factors listed are not exclusive, “[n]or will each factor be relevant in each instance.”   The court discusses the twelve factors further below.

The court has discussed above the sixth factor, concerning whether the fee was fixed or contingent.   As to the first and second factors, (1) the time and labor required and (2) the novelty and difficulty of the questions, the time expended by plaintiffs' counsel appears to have been reasonable.   While time was incurred to address factual disputes, and engage in discovery, the trial was relatively short, and the factual and legal issues were not novel or particularly difficult or complex.   The contingency rate results in a requested fee which is more than double the $125,000 which the parties agreed to concerning the invoice and which is the equivalent to using the lodestar formula.   As discussed, the reasonableness of the claimed hourly rates set forth in the invoice is not disputed and, based also on the court's knowledge of hourly rates, they are found to be reasonable.

As to the third factor, the skill required, plaintiffs' counsel are skilled attorneys, but the plaintiffs do not claim that the contingency rate sought is justified by unique qualifications.   Concerning the fifth factor, customary fees for similar work, as discussed above, the rate sought exceeds a typical contingency fee, for example, in personal injury cases.   See General Statutes § 52–251c(b) (sliding scale, beginning with 331/3% on the first $300,000).

Concerning the eighth factor, the amount involved and results obtained, the plaintiffs prevailed on all but one count and the monetary damages awarded are substantial.   The plaintiffs achieved a level of success which makes hours reasonably expended a satisfactory basis for an attorneys fees award, but does not support the contingency rate sought.

As to the ninth factor, the fact that defense counsel has an excellent reputation does not appear to have made the case more difficult or complex.   Plaintiffs' counsel also are able, experienced attorneys of commendable reputation.

Concerning the tenth factor, the undesirability of the case, the court agrees that cases against attorneys, such as this one, are often contentious and disputed, making them undesirable.   Questionable collectability also made this case less desirable.   However, the high rate sought is not justified.   A more standard contingency rate would have been sufficient to account for these aspects of the case.

No contentions were made as to the fourth factor (preclusion of other employment), the seventh factor (time limitations imposed), the eleventh factor (nature and length of professional relationship), or the twelfth factor (awards in similar cases).

Having considered the twelve factors listed above, the court concludes that the contingency rate sought in the fee agreement is not justified or reasonable, and, therefore, rejects it.   See Burrell v. Yale University, supra, Superior Court, Docket No. X02 CV 00 0159421.   Accordingly, the court need not consider the second step of the analysis, whether the fee agreement results in “substantial unfairness.”   See Schoonmaker v. Lawrence Brunoli, Inc., supra, 265 Conn. 270–71.

“When a CUTPA claim is the only claim presented in a case where the trial court decides to award attorneys fees under § 42–110g(d), the court's task in fashioning its award is to determine what fees are appropriate for work reasonably performed by the claimant's attorneys in prosecuting that claim.”   Coppola Construction Co., Inc. v. Hoffman Enterprises, Limited Partnership, Superior Court, judicial district of Hartford at Hartford, Docket No. HHD CV 09 5034505 (February 21, 2013, Sheldon, J.).   Here, the defendant does not claim that some of the work performed was analytically distinct from the CUTPA claim.   See id. (“where work performed on another claim is related to the prosecution of the claimant's CUTPA claim because, for example, both claims arise from the same underlying set of facts, then all work reasonably performed on all such related claims is compensable under § 42–110g(d).”)  In addition, in view of the parties' agreement, the court need not review individual time entries.

The court next considers whether the lodestar amount is reasonable in light of the claims asserted, the relief sought, and the results achieved.  “This evaluation involves a further consideration of the panoply of the Johnson [v. Georgia Highway Express, supra,] criteria to determine whether the lodestar amount should be increased or decreased.”  Bridgeport Harbour Place I, LLC v. Ganim, supra, Superior Court, Docket No. CV X06 04 0184523.

After consideration of the cited factors, as discussed above, and based primarily on plaintiffs' counsel's hourly rates, the services performed, the results obtained, and the parties' agreement concerning the invoice, the court concludes that an attorneys fee award in the agreed amount of $125,000 is reasonable and appropriate.   Accordingly, the court awards the sum of $125,000 as attorneys fees.

CONCLUSION

For the reasons stated above:

1. The previous judgment is modified.   Damages are awarded to the plaintiffs as follows:  Total damages:  $592,556.60 plus interest pursuant to General Statute § 52–192a, $229,108.32, resulting in a total amount awarded of $821,664.92.

2. In addition, attorneys fees in the amount of $125,000.00 are awarded to the plaintiffs.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. Section 17–18 provides, in relevant part:  “After trial the judicial authority shall examine the record to determine whether the plaintiff made an offer of compromise which the defendant failed to accept.   If the judicial authority ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain specified in that plaintiff's offer of compromise, the judicial authority shall add to the amount so recovered 8 percent annual interest on said amount ․ Any such interest shall be computed as provided in General Statutes § 52–192a.”.  FN1. Section 17–18 provides, in relevant part:  “After trial the judicial authority shall examine the record to determine whether the plaintiff made an offer of compromise which the defendant failed to accept.   If the judicial authority ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain specified in that plaintiff's offer of compromise, the judicial authority shall add to the amount so recovered 8 percent annual interest on said amount ․ Any such interest shall be computed as provided in General Statutes § 52–192a.”

FN2. In its decision, the court found, as to counts one and two, for conversion and statutory theft, that the plaintiffs proved that they suffered actual damages in the total amount of $135,000 ($85,000 plus $50,000).   Pursuant to General Statute § 52–564's mandatory language, the damages were trebled.   Accordingly, as to count two, concerning statutory theft, the plaintiffs were awarded treble damages, $405,000 ($135,000 x 3)..  FN2. In its decision, the court found, as to counts one and two, for conversion and statutory theft, that the plaintiffs proved that they suffered actual damages in the total amount of $135,000 ($85,000 plus $50,000).   Pursuant to General Statute § 52–564's mandatory language, the damages were trebled.   Accordingly, as to count two, concerning statutory theft, the plaintiffs were awarded treble damages, $405,000 ($135,000 x 3).

FN3. Calculated at the rate of four percent (4%) per annum, from March 27, 2008.   The per diem rate is $14.79 ($135,000 x .04 divided by 365), which, trebled, equals $44.37 per day. $44.37 x 1901 days equals $84,347.37..  FN3. Calculated at the rate of four percent (4%) per annum, from March 27, 2008.   The per diem rate is $14.79 ($135,000 x .04 divided by 365), which, trebled, equals $44.37 per day. $44.37 x 1901 days equals $84,347.37.

FN4. Calculated at the rate of four percent (4%) per annum, from January 1, 2008.   The per diem rate is $9.29 ($84,750 x .04 divided by 365). $9.29 x 1987 days equals $18,459.23..  FN4. Calculated at the rate of four percent (4%) per annum, from January 1, 2008.   The per diem rate is $9.29 ($84,750 x .04 divided by 365). $9.29 x 1987 days equals $18,459.23.

FN5. Calculated at the rate of eight percent (8%) per annum, for 1,764 days, from August 13, 2008, the date the original complaint was filed, until June 11, 2013, the date of the decision.   The per diem rate is $129.88 ($592,556.60 x .08 divided by 365). $129.88 x 1,764 days equals $229,108.32..  FN5. Calculated at the rate of eight percent (8%) per annum, for 1,764 days, from August 13, 2008, the date the original complaint was filed, until June 11, 2013, the date of the decision.   The per diem rate is $129.88 ($592,556.60 x .08 divided by 365). $129.88 x 1,764 days equals $229,108.32.

FN6. Using the original judgment amount, $746,842.11, multiplied by 35%, resulted in the amount sought by the plaintiffs in their motion, $261,394.74.   However, according to the terms described above, that amount would be added to the judgment and again multiplied by 35%, for a resulting fee of $352,882.88, a rate of 47.25%..  FN6. Using the original judgment amount, $746,842.11, multiplied by 35%, resulted in the amount sought by the plaintiffs in their motion, $261,394.74.   However, according to the terms described above, that amount would be added to the judgment and again multiplied by 35%, for a resulting fee of $352,882.88, a rate of 47.25%.

FN7. The eight factors listed in Rule of Professional Conduct 1.5(a) are included in the Johnson factors.   The court discusses these twelve factors further below..  FN7. The eight factors listed in Rule of Professional Conduct 1.5(a) are included in the Johnson factors.   The court discusses these twelve factors further below.

Shapiro, Robert B., J.