Laurence V. Parnoff v. Darcy Yuille (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR JUDGMENT (# 134)

I

BACKGROUND AND PROCEDURAL HISTORY

This case concerns an attorney fee dispute between the plaintiff, Laurence Parnoff, and the defendant, his former client, Darcy Yuille, arising out of the plaintiff's representation of the defendant in a wrongful termination action.   The question for the court to decide is whether, on remand from the Appellate Court, the court should grant the defendant's motion for judgment as to count two of the plaintiff's complaint.   More specifically, the court must decide whether General Statutes § 52–251c,¹ colloquially known as the “attorneys fee cap statute,” precludes an attorney who violates the statute from recovering in quantum meruit.²  In order to answer this question, the court must address (1) whether the Appellate Court's decision in this case, Parnoff v. Yuille, 139 Conn.App. 147, 57 A.3d 349, cert. denied, 307 Conn. 956, 59 A.3d 1192 (2012), requires the entry of judgment as to count two and (2) if it does not, whether § 52–251c nevertheless precludes recovery under count two.   The court concludes that the Appellate Court's decision does not require the entry of judgment because the Appellate Court did not address count two of the complaint.   Nevertheless, the court concludes that § 52–251c does preclude recovery under count two.

In its recent decision in this case, the Appellate Court recited the following facts and procedural history.  “On December 5, 1998, the plaintiff and the defendant entered into a contingent fee retainer agreement through which the defendant retained the plaintiff ‘to prosecute a claim for injuries and damages resulting’ from Bridgeport Hospital's (hospital) allegedly bad faith handling of the defendant's workers' compensation claim.   The fee agreement provided for a contingent fee of 40 percent ‘in place of an hourly charge of $240.00 for work performed.’   The percentage of recovery set forth in the fee agreement exceeds the cap set forth in the fee cap statute.   By way of a complaint dated November 16, 1998, the plaintiff brought a claim against the hospital on behalf of the defendant ․ [T]he parties to the action against the hospital agreed to submit the claims ․ to binding arbitration.   The three person arbitration panel issued its decision on June 29, 2004, in which the panel found in favor of the hospital on count one of the complaint alleging wrongful discharge.   As to the second count, alleging that the hospital had engaged in intentional and reckless conduct in response to Yuille's workers' compensation filing, the panel stated:  ‘On Count Two of the complaint, we find in favor of [Yuille] and award damages in the amount of One Million Ninety Six Thousand Thirty Two and 93/100 ($1,096,032.93) Dollars.’   Thereafter, the plaintiff sent an invoice to the defendant in which he itemized his billing, indicating the gross settlement amount, allowable expenses, and an attorneys fee of $484,446.10 that represented [forty] percent of the gross settlement proceeds.   In response, the defendant returned the invoice to the plaintiff with a note as follows:  ‘Dear Larry—The enclosed statement is acceptable with the exception of your legal fee.   I authorize you to take $125,000 toward your legal fee.   The remaining amount needs to be placed in an escrow account with both our names on the account until ․ my objection to the [forty percent] fee is resolved.   Yours—Darcy Stevens Yuille.”  (Footnotes omitted.)  Parnoff v. Yuille, supra, 139 Conn.App. 152–53.

“The record thereafter reflects an exchange of correspondence that did not bring a final resolution to the fee dispute.   Having failed to reach an accord, the plaintiff, on March 9, 2005, filed a three count complaint [in the Superior Court] against the defendant as follows.   The first count sets forth a breach of contract claim based on the written fee agreement and the result achieved in binding arbitration.   The second count, although captioned ‘unjust enrichment,’ sets forth a claim more properly viewed as one in quantum meruit, as it repeats the assertions of the first count and adds to them the statement that ‘[t]he reasonable value of the Plaintiff's services was $438,413.17.’   The third count, captioned ‘Bad Faith,’ repeats the essential allegations of the first count and adds to them the claim that the defendant's conduct was ‘intentional, willful, in bad faith and in reckless disregard of the injury, financial damage and emotional distress to the Plaintiff ․’ Through this action, the plaintiff claimed money damages, attorneys fees, punitive damages, equitable relief, interest and costs.   In response, the defendant filed an answer and two special defenses to all counts.   In her first special defense, she alleged that the fee agreement was unenforceable as a matter of law because it violated the prescriptions of § 52–251c.   In her second special defense, she alleged that the fee sought by the plaintiff was excessive and unconscionable.   The plaintiff replied to the special defenses with a general denial of their allegations.   Notably, the plaintiff did not allege, by way of reply, that the defendant had waived the protections of § 52–251c or that she had ratified the contract by her conduct subsequent to entering into it.”  (Footnotes omitted.)  Parnoff v. Yuille, supra, 139 Conn.App. 154–55.

At the end of trial, the court instructed the jury as to the applicable law, including the instruction that if the jury found the defendant liable on the contract, the fee cap statute applied and, absent a waiver of the protections provided by that statute, “the plaintiff's right to compensatory damages would be limited by the statutory terms [of § 52–251c].”  (Footnote omitted.)   Id., 156.   In other words, the court instructed the jury that § 52–251c operated to merely reduce the maximum recovery available to the plaintiff, instead of instructing them that it precluded recovery absolutely.

After deliberations, “the jury found, with respect to the first count, that the plaintiff and the defendant had entered into a contingency fee agreement and that the agreement was not excessive, unconscionable and unenforceable.   The jury found, as well, that the defendant did not waive the provisions of § 52–251c and, therefore, as instructed, awarded the plaintiff the sum of $139,404.94 less the sum of $125,000 already paid to the plaintiff, representing the maximum fee allowable under the fee cap statute.   As to the third count alleging that the defendant's breach of contract was intentional, the jury, in response to an interrogatory, found that the defendant's breach was ‘wanton, malicious and egregious with reckless disregard for (the] [p]laintiff's property right’ and, accordingly, awarded punitive damages to the plaintiff in the amount of $75,000.   Finally, the jury awarded prejudgment interest to the plaintiff in the amount of $37,639.33.”  (Footnote omitted;  internal quotation marks omitted.)  Parnoff v. Yuille, supra, 139 Conn.App. 157.

With respect to count two, “the jury was instructed to answer the relevant interrogatories only if it found in favor of the defendant on the plaintiff's contract claim [in count one].   Accordingly, the jury did not answer interrogatories regarding the defendant's conduct on the issue of unjust enrichment.”  Id., 157–58.

Following the jury verdict, the plaintiff appealed, claiming, inter alia, that § 52–251c did not apply to the type of claims he was retained to assert on behalf of the defendant:  wrongful termination and workplace discrimination.   The defendant cross appealed asserting that, inter alia, (1) it was improper for the Superior Court to have submitted the contract claim in count one to the jury at all, even with the instruction limiting permissible damages, because the contract violated § 52–251c and (2) the instruction limiting damages improperly reformed the contract.

The Appellate Court reversed the judgment of the trial court.   First, it concluded that “the complaint filed by counsel for Yuille against the hospital was a civil action in which counsel sought to recover damages resulting from personal injury.   Such a complaint squarely falls within the ambit of § 52–251c.”  Parnoff v. Yuille, supra, 139 Conn.App. 161.   The court next held that the retainer agreement between the plaintiff and the defendant violated the prescriptions of the fee cap statute and, therefore, the contract was unenforceable in its entirety.  Id., 169–70.   The court reasoned that this result—finding the contract to be unenforceable, as opposed to merely reducing the maximum recovery allowable—was congruent with the public policy underlying the statute because “[if] ․ the purpose of [§ 52–251c] when enacted was to protect the public from overreaching attorneys, enforcement of an overreaching fee agreement would violate such a policy even where recovery is limited to the statutory amounts because such a result would create no disincentive for an overreaching attorney and no corresponding public benefit.”  Id. The court continued, “[i]n other words, if an attorney could be assured of a fee no less than the amount provided by the fee cap statute, such an attorney, if unscrupulous, would have no reason, based in law, to limit fees to the statutory prescribed amount because enforcement of the contract in accordance with the statutorily permitted amount would simply become the lowest possible fee recoverable.   That outcome, however, does not comport with the statute's stated purpose.”  Id., 170.

Based upon the above, the court concluded “[i]n the case at hand ․ by permitting the jury to consider the breach of contract claim based on an improper fee agreement and then limiting the plaintiff's damages to amounts prescribed by the fee cap statute, the court effectively reformed the fee agreement to permit a recovery premised on a contract that violated public policy.   Based on the history of the act and the public policy it embraces, we believe, there was no legal or policy laden basis for the court to have reformed the contract so as to make a contract against public policy nevertheless enforceable.   Rather, the court should not have permitted the jury to consider the plaintiff's contract based claim.   Accordingly, the jury's verdict on the contract counts cannot stand.”  Parnoff v. Yuille, supra, 139 Conn.App. 172.   The court's rescript stated:  “The judgment in favor of the plaintiff on the breach of contract counts is reversed and the case is remanded with direction to dismiss those counts of the complaint.”  Id., 173.   On January 23, 2013, the Supreme Court denied the plaintiff's petition for certification of appeal.

On remand, this court must now address the defendant's motion for judgment (# 134), which was filed by the defendant on February 4, 2013 and which seeks the entry of judgment as to count two of the plaintiff's complaint on the ground that the Appellate Court's ruling precludes any recovery on that count.³  On June 5, 2013, the plaintiff filed an objection (# 135) and supporting memorandum of law (# 136), in which the plaintiff requests that the claims under count two be set down for an immediate trial.

Thereafter, on July 5, 2013, the plaintiff filed an additional document entitled “Plaintiff's Brief Regarding Issue of Remand” (# 139).   On July 24, 2013, the defendant filed a supplemental memorandum in support of her motion for judgment (# 143).⁴  On July 25, 2013, the plaintiff filed a memorandum in reply (# 146).   The court heard oral argument on the matter on July 26, 2013.   Further facts will be recited as necessary.

Before proceeding, the court first dispenses with a procedural argument raised by the plaintiff in his June 5, 2013 objection and supporting memorandum.   In particular, the plaintiff presents the cursory argument that the defendant's motion for judgment as to count two must be construed as either a motion to dismiss, a motion to strike, or a motion for summary judgment.   If a motion to dismiss, the plaintiff argues that it was not filed within thirty days of the entry of the defendant's appearance as required by Practice Book § 10–30 and also that it does not contain a separate memorandum of law.   If a motion to strike, the plaintiff argues, without stating why, that the motion does not meet the strictures of Practice Book §§ 10–39 through 10–41.   If a motion for summary judgment, the plaintiff argues, again without providing a specific rationale, that it does not comply with Practice Book §§ 17–44 through 17–46.   The plaintiff does not present any analysis with respect to any of these claims.   The defendant does not respond to them and neither party raised the issue at oral argument on July 26, 2013.

The plaintiff's position fails for several reasons.   First, it is inadequately briefed.   See Taylor v. Mucci, 288 Conn. 379, 392 n.4, 952 A.2d 776 (2008) (declining to review inadequately briefed claim in which appellant had cited only one case and provided only cursory analysis).

Second, the plaintiff's position appears to be that, because the jury did not make a determination as to the merits of count two, the clock has reset and the case should proceed from the very beginning, as if the complaint had just been filed.⁵  The plaintiff has not, however, provided any authority for the proposition that the effect of the Appellate Court's remand is to start the case anew.   The Appellate Court's rescript certainly does not order as much.

The plaintiff does cite to Practice Book § 10–6 in support of his argument.   This section, when combined with Practice Book § 10–8, does provide the order of pleadings and the time to plead.   Collectively, the two sections also allow for a litigant to proceed through the order of allowed pleadings each time an amended or revised complaint is properly filed by a party.   They do so, however, only after an amended or revised complaint has been filed, which has not occurred here.   At this stage, an amended complaint could only be filed with the consent of the defendant or the permission of the court, neither of which has been sought or granted.   See Practice Book § 10–60.   Further, an amended complaint would be improper at this stage because the defendant does not claim that he has additional facts to allege.   The Practice Book does not direct or allow, as the plaintiff's argument implies, for a case to be reset solely for the reason that the case has come back to the Superior Court on remand.

Third, were the court to agree that the case should proceed through the normal order of pleadings, the court notes that the plaintiff's perfunctory argument remains unavailing.   The plaintiff does not contend which specific motion he believes the defendant's motion should be construed as, instead choosing to argue that it may be any one of the three.   The plaintiff then asserts, entirely without analysis, that whatever type of motion has been presented, it does not comply with the relevant Practice Book sections.   Without more, the court will not endeavor to intuit the precise reason why the plaintiff believes the defendant's motion is procedurally improper and, accordingly, does not agree with the plaintiff that the defendant's motion should fail as a matter of procedure.

The defendant first argues that final judgment entered as to count two on July 13, 2010, when judgment on the jury's verdict entered, and that the plaintiff did not appeal the judgment as to count two when it filed its appeal with the Appellate Court.   The defendant also argues that the plaintiff's claims in count two must fail because the Appellate Court concluded in its decision that the fee cap statute applied to the plaintiff's representation of the defendant and, further that the fee cap statute is the exclusive means of recovery when the statute applies.   The defendant also reasons that the Appellate Court explicitly stated that the plaintiff would not be entitled to recovery under a theory of quantum meruit.   See Parnoff v. Yuille, supra, 139 Conn.App. 158 n.10.

In response, the plaintiff argues in his June 5, 2013 objection and supporting memorandum that, in the underlying trial, the jury was instructed to make no determination as to count two in the event it found liability under count one, and that this is in fact what happened.   Accordingly, the plaintiff reasons, the jury did not make any findings as to count two, there was therefore nothing to appeal, and the Appellate Court's orders on remand do not affect that count because the Appellate Court did not address count two.   Instead, the plaintiff claims, he is entitled to a jury trial as to the merits of his second count.   By way of further response, the plaintiff argues further in his July 5, 2013 memorandum that the fact that he did not seek any appellate determination as to count two does not preclude him from now seeking to assert his claim because, following the trial, there was no jury determination from which to appeal.   The plaintiff also contends that it is the policy of the courts to bring about a trial on the merits of a dispute wherever possible, and that the court should do so here.

In response, the defendant argues in her July 24, 2013 memorandum that the plaintiff failed to preserve, on appeal, any claim that he is entitled to prosecute his unjust enrichment cause of action because he failed to raise the issue either at any stage before the Appellate Court, with the Appellate Court itself, or in his certification for appeal to the Supreme Court.   Accordingly, pursuant to the reasoning in Harris v. Bradley Memorial Hospital & Health Center, 306 Conn. 304, 319, 50 A.3d 841 (2012), cert. denied, 133 S.Ct. 1809, 185 L.Ed.2d 812 (2013), the plaintiff ought to be deemed to have abandoned the claim.   The defendant argues further that the appellate court explicitly rejected the notion that the plaintiff may be entitled to judgment under a theory of quantum meruit and, further, that under the same reasoning the plaintiff would not be entitled to recovery under a theory of unjust enrichment because the same equitable considerations apply under either theory.

The plaintiff argues in his July 25, 2013 memorandum in reply that it is inconsistent for the defendant to contend that the Appellate Court's ruling explicitly addressed the availability of recovery under count two while also arguing that the plaintiff failed to preserve his claims under count two for review.   The plaintiff continues that any statement made by the Appellate Court as to whether the fee cap statute would permit recovery under a theory of quantum meruit is dicta and is not binding upon this court.

The court first addresses whether the Appellate Court's ruling explicitly requires the entry of judgment as to count two.   Respecting count two, the Appellate Court stated in its opinion:  “With respect to interrogatories concerning the second count, captioned ‘Unjust Enrichment,’ the jury was instructed to answer the relevant interrogatories only if it found in favor of the defendant on the plaintiff's contract claim.   Accordingly, the jury did not answer interrogatories regarding the defendant's conduct on the issue of unjust enrichment.   The jury did, however, place a check mark on the line for a defendant's verdict under the second count regarding unjust enrichment in the plaintiff's verdict form given to the jury by the court.   Even if we assume that the jury followed the court's instructions not to reach the unjust enrichment claim should the jury find in favor of the plaintiff in regard to the existence of a contract and a breach, we place no significance in the jury's notation on the plaintiff's verdict form.   Contrary to the defendant's argument, we do not view this notation as a determination on the merits.   Because, however, neither the plaintiff nor the defendant has asked that the matter be remanded for a hearing on the unjust enrichment count, we do not need to resolve whether a lawyer, barred from contract recovery because of the contract's failure to comply with the fee cap statute, may nevertheless bring an action in quantum meruit.”  Parnoff v. Yuille, 139 Conn.App. 157–58 and n.10.

The parties hotly dispute the effect of this statement and the accompanying footnote ten in the Appellate Court's opinion.   Nevertheless, the plain and only import of the court's statement is that (1) the jury did not make a determination on the merits as to count two and (2) count two was not raised as an issue on appeal before the court.   Accordingly, the court did not make any determination as to that count and the Appellate Court's decision does not bind this court to enter any particular disposition as to count two.

Next, the court addresses the defendant's argument that the plaintiff abandoned his right to assert his claim in count two of the complaint when he did not raise any issues pertaining to that count on appeal.   In support of this argument, the defendant relies upon Harris v. Bradley Memorial Hospital & Health Center, Inc., supra, 306 Conn. 319, wherein the court stated “[a]n appellant who fails to brief a claim abandons it ․” (emphasis in original).

Harris does not stand for the proposition that merely by failing to include a claim on appeal, a litigant always waives all rights to assert that claim.   Rather, the import of Harris is that an appealable issue must be appealed or be waived.   Accordingly, a court will “refuse[ ] to consider claims on subsequent appeals by the same party in which [n]o valid reason has been alleged as to why the [appellant] could not have brought the present claim when the prior one was brought.”  (Emphasis added.)  Id. The court went on to conclude that a defendant did not waive the issue he sought to assert on a subsequent appeal because “the trials court's judgment ․ already had provided the defendant with complete relief.”  Id., 321.   Here, similarly, as noted by the Appellate Court in its decision in this action, the jury never made a merits based determination as to count two.   In fact, it was explicitly instructed not to do so if it found liability under count one, which it did.   The plaintiff is, therefore, correct that he did not waive his claims in count two by not asserting those claims on appeal because there was nothing from which he could have appealed.

The court next analyzes whether § 52–251c nevertheless precludes judgment in the plaintiff's favor under count two.  “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ․ In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ․ The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.”  (Internal quotation marks omitted.)  Parnoff v. Yuille, supra, 139 Conn.App. 159–60.

Section 52–251c provides, in relevant part:  “(b) In any ․ contingency fee agreement [to which this statute applies] such fee shall be the exclusive method for payment of the attorney by the claimant and shall not exceed an amount equal to a percentage of the damages awarded and received by the claimant or of the settlement amount received by the claimant as follows:  (1) Thirty-three and one-third per cent of the first three hundred thousand dollars;  (2) twenty-five per cent of the next three hundred thousand dollars;  (3) twenty per cent of the next three hundred thousand dollars;  (4) fifteen per cent of the next three hundred thousand dollars;  and (5) ten per cent of any amount which exceeds one million two hundred thousand dollars. (c) Notwithstanding the provisions of subsection (b) of this section, a claimant may waive the percentage limitations of said subsection if the claim or civil action is so substantially complex, unique or different from other wrongful death, personal injury or property damage claims or civil actions as to warrant a deviation from such percentage limitations ․ (g) No fee shall be payable to any attorney who seeks a fee that exceeds the percentage limitations of subsection (b) of this section unless the claimant has waived such limitations ․” (Emphasis added.);   see also, Parnoff v. Yuille, supra, 139 Conn.App. 147 (fee cap statute exclusive means of recovery for attorney when retainer agreement governed by fee cap statute).

As previously noted, the Appellate Court determined that:  § 52–251c does apply to the claims for which defendant engaged the plaintiff's services, the defendant did not waive the protections of the statute, and the retainer agreement between the plaintiff and the defendant violated the statute.   The only remaining question, therefore, is whether the plaintiff may nevertheless recover under a theory of quantum meruit despite the fact that the retainer agreement did violate the statute, a matter of law and an issue of first impression that turns upon whether the respective public policies underlying quantum meruit and the fee cap statute are congruent in the present factual context.⁶

“Quantum meruit is a theory of contract recovery that does not depend upon the existence of a contract, either express or implied in fact ․ Rather, quantum meruit arises out of the need to avoid unjust enrichment to a party, even in the absence of an actual agreement ․ Quantum meruit literally means ‘as much as he has deserved’ ․ Black's Law Dictionary (7th Ed.1999).   Centered on the prevention of injustice, quantum meruit strikes the appropriate balance by evaluating the equities and guaranteeing that the party who has rendered services receives a reasonable sum for those services.”  (Citations omitted;  internal quotation marks omitted.)  Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001).

Meanwhile, § 52–251c(b) provides that the fee structure it imposes “shall be the exclusive method for payment of the attorney by the claimant ․ “ (emphasis added).   The policy underlying the exclusivity provision of the statute is to protect consumers from unscrupulous attorneys who charge excessive contingency fees.  Gagne v. Vaccaro, supra, 255 Conn. 406.   In light of this, § 52–251c generally serves as the exclusive means of recovery by an attorney seeking unpaid fees from a client.

Nevertheless, under certain circumstances, the courts of our state have held that recovery under a theory alternative to § 52–251c may sometimes be available.   For example, in Gagne, the court was asked to decide whether § 52–251c prevented an attorney from recovering from a successor attorney in quantum meruit when the first attorney violated the strictures of the fee cap statute.   In order to answer that question, the court analyzed whether the policy underlying the fee cap statute, which finds of its roots in the Rules of Professional Conduct, was consistent with the policy underlying quantum meruit as applied to the facts presented.   The court first observed that “[s]ection 52–251c was intended to regulate the attorney-client relationship in order to protect plaintiffs from excessive legal fees.”  (Internal quotation marks omitted.)  Id., 402.

The court then reviewed a number of other similar statutes in differing contexts, such as statutes governing recovery from clients by real estate brokers;  see General Statutes § 20–325a et seq.;   or those governing recovery from clients by home improvement contractors.   See General Statutes § 20–418 et seq., the Home Improvement Act. The court noted that in each case the statute is designed to prohibit recovery in the event that the statute's strictures are not followed and, further, that in each case this is by design to protect the consumer.  Gagne v. Vaccaro, supra, 225 Conn. 403–04.   Drawing upon these parallels, the court concluded that the goal of the fee cap statute is to protect consumers from unscrupulous attorneys who charged excessive contingency fees.  Id., 406.   Turning to the facts before it, the court concluded that the fee cap statute did not, however, preclude the plaintiff's recovery in that case because “[t]he ability of an attorney to recover from a successor attorney does not endanger the important public policy of protecting the public from excessive legal fees, particularly when the plaintiff's agreement with the defendant is a separate transaction from the plaintiff's agreement with the [client].”  (Internal quotation marks omitted.)  Id., 406.

In addition to Gagne, there is at least one instance in which the Appellate Court permitted an attorney to recover under a theory of quantum meruit as an alternative to recovery under a retainer agreement that was governed by § 52–251c.   See McCullough v. Waterside Associates, 102 Conn.App. 23, 925 A.2d 352, cert. denied, 284 Conn. 905, 931 A.2d 264 (2007).   In that case, however, there was no dispute that the retainer fee agreement did not violate the statute.   Rather, after the attorney had already obtained a favorable settlement for his client, but before the settlement was finalized, the client attempted to discharge the attorney to avoid paying the fee provided by the retainer agreement.   The court, observing that “[a]n attorney who is employed under a contingent fee contract and discharged prior to the occurrence of the continency is limited to quantum meruit recovery for the reasonable value of the services rendered to the client,” concluded that the plaintiff was entitled to recovery.  (Emphasis added;  internal quotation marks omitted.)  Id., 30.

In the present case, the Appellate Court offered its views, albeit in dicta, on the manner in which § 52–251c might apply to the doctrine of quantum meruit within the context of the particular facts that are now presented.   Specifically, the court stated:  “It is our impression ․ that the Supreme Court's decision in Gagne v. Vaccaro, 255 Conn. 390, 766 A.2d 416 (2001), does not apply [to permit recovery under quantum meruit].   There, the court opined that an attorney discharged by a client may seek fees from a succeeding attorney on the basis of quantum meruit even in the absence of a written fee agreement.   In such a situation, however, because the client's gross fees are fixed by the fee agreement entered into with the succeeding attorney, the public policy concerns of § 52–251c are not implicated.   Such is not the case were we to permit a recovery based on quantum meruit by an attorney who is prevented from recovering for the breach of a contract made unenforceable by the provisions of the fee cap statute.   To permit a recovery in quantum meruit in such a situation would, as a practical matter, render the statutory limits of the fee cap statute a meaningless legislative gesture.”  Parnoff v. Yuille, supra, 139 Conn.App. 158 n.10.

Based upon the above, it is clear that recovery under a theory of quantum meruit is available to an attorney in lieu of recovery pursuant to a retainer agreement governed by § 52–251c only where such recovery would not defeat the purposes of that section.   Accordingly, recovery is available where the retainer agreement complied with the statute, but was rendered otherwise null through, for example, the discharge of the attorney.  McCullough v. Waterside Associates, supra, 102 Conn.App. 23.   Alternatively, recovery is available between an attorney and a successor attorney even where the first attorney's retainer agreement did violate the statute because in such a case the interest in protecting the client is no longer implicated.  Gagne v. Vaccaro, supra, 255 Conn. 390.   Recovery cannot, however, be available to an attorney whose retainer with a client clearly violates the statute, even when an attorney obtained a desirable result for the client.  “To permit a recovery in quantum meruit in such a situation would, as a practical matter, render the statutory limits of the fee cap statute a meaningless legislative gesture.”   Parnoff v. Yuille, supra, 139 Conn.App. 158 n.10. It would amount to a judicial determination that an unscrupulous attorney is free to violate the statute in the hope that his or her client remained none the wiser because, at worst, the attorney would receive the statutory maximum.   Such cannot be the proper interpretation of § 52–251c and, although this result may appear harsh, it is the result required in this case by the intent underlying the statute's passage.⁷

Finally, the court's conclusion would not change were count two construed as a claim of unjust enrichment.   See Gagne v. Vaccarro, supra, 255 Conn. 399 n.10 (noting § 52–251c would apply equally to quantum meruit and unjust enrichment claims);  see also Parnoff v. Yuille, supra, 139 Conn.App. 154 n.7 (although quantum meruit and unjust enrichment are different forms of recovery, the two doctrines are “allied common-law principles”);  McCullough v. Waterside Associates, supra, 102 Conn.App. 28 n.4 (noting similarity between underlying principles of quantum meruit and unjust enrichment).

For the foregoing reasons, the defendant's motion for judgment (# 134) is GRANTED as to count two.   Judgment shall enter accordingly.

THE COURT,

GILARDI, J.T.R.

FOOTNOTES

FN1. Section 52–251c provides, in pertinent part:“(b) In any such contingency fee agreement such fee shall be the exclusive method for payment of the attorney by the claimant and shall not exceed an amount equal to a percentage of the damages awarded and received by the claimant or of the settlement amount received by the claimant as follows:  (1) Thirty-three and one-third per cent of the first three hundred thousand dollars;  (2) twenty-five per cent of the next three hundred thousand dollars;  (3) twenty per cent of the next three hundred thousand dollars;  (4) fifteen per cent of the next three hundred thousand dollars;  and (5)ten per cent of any amount which exceeds one million two hundred thousand dollars.“(c) Notwithstanding the provisions of subsection (b) of this section, a claimant may waive the percentage limitations of said subsection if the claim or civil action is so substantially complex, unique or different from other wrongful death, personal injury or property damage claims or civil actions as to warrant a deviation from such percentage limitations.”.  FN1. Section 52–251c provides, in pertinent part:“(b) In any such contingency fee agreement such fee shall be the exclusive method for payment of the attorney by the claimant and shall not exceed an amount equal to a percentage of the damages awarded and received by the claimant or of the settlement amount received by the claimant as follows:  (1) Thirty-three and one-third per cent of the first three hundred thousand dollars;  (2) twenty-five per cent of the next three hundred thousand dollars;  (3) twenty per cent of the next three hundred thousand dollars;  (4) fifteen per cent of the next three hundred thousand dollars;  and (5)ten per cent of any amount which exceeds one million two hundred thousand dollars.“(c) Notwithstanding the provisions of subsection (b) of this section, a claimant may waive the percentage limitations of said subsection if the claim or civil action is so substantially complex, unique or different from other wrongful death, personal injury or property damage claims or civil actions as to warrant a deviation from such percentage limitations.”

FN2. There is some dispute amongst the parties as to whether count two states a cause of action for unjust enrichment or for quantum meruit.   On the one hand, the plaintiff has captioned count two “unjust enrichment,” and the count was referred to as such throughout the entirety of this action's pendency prior to the appeal.   On the other hand, the Appellate Court, when reviewing the procedural history of this case, noted that count two of the complaint “sets forth a claim more properly viewed as one in quantum meruit, as it repeats the assertions of the first count and adds to them the statement that ‘[t]he reasonable value of the Plaintiff's services was $438,413.17.’  “ Parnoff v. Yuille, supra, 139 Conn.App. 154.   The Appellate Court proceeded throughout the remainder of its opinion to refer to count two as a claim for quantum meruit, but also noted that no issue relating to count two was up on appeal, and that the count was not before the court.   Id., 158 n.10. This court, mindful of the fact that the interpretation of pleadings is always a question of law for the court to decide;  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005);  concludes that count two alleges a cause of action for quantum meruit..  FN2. There is some dispute amongst the parties as to whether count two states a cause of action for unjust enrichment or for quantum meruit.   On the one hand, the plaintiff has captioned count two “unjust enrichment,” and the count was referred to as such throughout the entirety of this action's pendency prior to the appeal.   On the other hand, the Appellate Court, when reviewing the procedural history of this case, noted that count two of the complaint “sets forth a claim more properly viewed as one in quantum meruit, as it repeats the assertions of the first count and adds to them the statement that ‘[t]he reasonable value of the Plaintiff's services was $438,413.17.’  “ Parnoff v. Yuille, supra, 139 Conn.App. 154.   The Appellate Court proceeded throughout the remainder of its opinion to refer to count two as a claim for quantum meruit, but also noted that no issue relating to count two was up on appeal, and that the count was not before the court.   Id., 158 n.10. This court, mindful of the fact that the interpretation of pleadings is always a question of law for the court to decide;  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005);  concludes that count two alleges a cause of action for quantum meruit.

FN3. The motion also seeks the dismissal of counts one and three of the plaintiff's complaint in accordance with the Appellate Court's rescript.   On July 1, 2013, this court, Gilardi, J., entered an order on the plaintiff's February 4, 2013 motion for judgment, which incorrectly stated that counts two and three were dismissed and also that judgment was entered as to count two.   Prior to that date, however, on June 6, 2013, the parties appeared at a status conference before the court, Bellis, J., during which the parties agreed to a briefing schedule and set the matter down for argument on July 26, 2013.   Accordingly, on July 26, 2013, the court, Bellis, J., vacated the July 1, 2013 order.   On that same date, the court, Gilardi, J., heard oral argument, during which the court entered an order in accordance with the Appellate Court's rescript, dismissing counts one and three of the plaintiff's complaint.   At this time, the only issue left to be determined is whether the defendant is also entitled to judgment as to count two..  FN3. The motion also seeks the dismissal of counts one and three of the plaintiff's complaint in accordance with the Appellate Court's rescript.   On July 1, 2013, this court, Gilardi, J., entered an order on the plaintiff's February 4, 2013 motion for judgment, which incorrectly stated that counts two and three were dismissed and also that judgment was entered as to count two.   Prior to that date, however, on June 6, 2013, the parties appeared at a status conference before the court, Bellis, J., during which the parties agreed to a briefing schedule and set the matter down for argument on July 26, 2013.   Accordingly, on July 26, 2013, the court, Bellis, J., vacated the July 1, 2013 order.   On that same date, the court, Gilardi, J., heard oral argument, during which the court entered an order in accordance with the Appellate Court's rescript, dismissing counts one and three of the plaintiff's complaint.   At this time, the only issue left to be determined is whether the defendant is also entitled to judgment as to count two.

FN4. This document appears to have been filed in duplicate with a second entry on the court's docket, (# 144), which was also filed on July 24, 2013.   A review of the two filings reveals that they are identical, the sole exception being a sequential time stamp appearing at the top of each individual page on the two respective filings.   This stamp appears to have been added by the defendant's facsimile machine.   On (# 143), it reads:  “Jul. 24 2013 12:57 PM No. 0443 P. 3/11 [et seq.].” On (# 144), it reads:  “Jul. 24 2013 12:55 PM No 0442 P. 2 [et seq.].” Because the documents are otherwise wholly identical, the court need not determine which one is operative..  FN4. This document appears to have been filed in duplicate with a second entry on the court's docket, (# 144), which was also filed on July 24, 2013.   A review of the two filings reveals that they are identical, the sole exception being a sequential time stamp appearing at the top of each individual page on the two respective filings.   This stamp appears to have been added by the defendant's facsimile machine.   On (# 143), it reads:  “Jul. 24 2013 12:57 PM No. 0443 P. 3/11 [et seq.].” On (# 144), it reads:  “Jul. 24 2013 12:55 PM No 0442 P. 2 [et seq.].” Because the documents are otherwise wholly identical, the court need not determine which one is operative.

FN5. In this sense, the plaintiff's argument appears to be borderline disingenuous.   On the one hand, the plaintiff would like to relitigate count two from the beginning.   On the other, he has essentially requested a judicial determination that the defendant cannot do the same, at least with respect to the defendant's right to file a motion to dismiss, because more than thirty days has passed since the filing of the defendant's appearance.   Thus, the plaintiff would like the benefit of a judicial reset while simultaneously asking that the defendant be deprived of one.   Further, the plaintiff's argument ignores that a motion to dismiss for lack of subject matter jurisdiction, assuming one might lay in this action, can be filed at any time.   See Practice Book § 10–33;  Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011)..  FN5. In this sense, the plaintiff's argument appears to be borderline disingenuous.   On the one hand, the plaintiff would like to relitigate count two from the beginning.   On the other, he has essentially requested a judicial determination that the defendant cannot do the same, at least with respect to the defendant's right to file a motion to dismiss, because more than thirty days has passed since the filing of the defendant's appearance.   Thus, the plaintiff would like the benefit of a judicial reset while simultaneously asking that the defendant be deprived of one.   Further, the plaintiff's argument ignores that a motion to dismiss for lack of subject matter jurisdiction, assuming one might lay in this action, can be filed at any time.   See Practice Book § 10–33;  Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).

FN6. It is significant that there is no assertion of a genuine factual dispute that is material to the determination of whether § 52–251c precludes recovery under quantum meruit.   Because the Appellate Court has already determined that § 52–251c does apply to the facts of this case, the only remaining question is whether the statute also precludes recovery as a matter of law with respect to the plaintiff's claims in count two..  FN6. It is significant that there is no assertion of a genuine factual dispute that is material to the determination of whether § 52–251c precludes recovery under quantum meruit.   Because the Appellate Court has already determined that § 52–251c does apply to the facts of this case, the only remaining question is whether the statute also precludes recovery as a matter of law with respect to the plaintiff's claims in count two.

FN7. It is significant that, here, the defendant did not attempt to use her understanding that the retainer agreement violated § 52–251c as a sword.   That is to say, it is not the case that the plaintiff has recovered nothing at all.   Rather, the defendant did authorize the plaintiff to take from the settlement amount his allowable costs and an attorneys fee of $125,000.   Were this not the case, there is at least some suggestion in the court's rationale in Gagne and elsewhere that some measure of recovery may be available on the theory that statutes such as the fee cap statute are not designed to permit a defendant to obtain a windfall in bad faith.   See Gagne v. Vaccarro, supra, 255 Conn. 403 (analyzing relationship between § 52–251c and Rules of Professional Conduct;  concluding that Rules of Professional conduct are “SUBVERted when they are invoked by opposing parties as procedural weapons”);  see also Walpole Woodworkers, Inc. v. Manning, 307 Conn. 582, 586–87, 57 A.3d 730 (2012) (Recovery under theory of quantum meruit permissible in spite of exclusivity provision of the Home Improvement Act, General Statutes § 20–418 et seq., when contractor can establish that home owner invoked act in “bad faith”).   Here, however, given the Appellate Court's reversal of the judgment as to count three, there is no factual basis for a finding of bad faith on the part of the defendant..  FN7. It is significant that, here, the defendant did not attempt to use her understanding that the retainer agreement violated § 52–251c as a sword.   That is to say, it is not the case that the plaintiff has recovered nothing at all.   Rather, the defendant did authorize the plaintiff to take from the settlement amount his allowable costs and an attorneys fee of $125,000.   Were this not the case, there is at least some suggestion in the court's rationale in Gagne and elsewhere that some measure of recovery may be available on the theory that statutes such as the fee cap statute are not designed to permit a defendant to obtain a windfall in bad faith.   See Gagne v. Vaccarro, supra, 255 Conn. 403 (analyzing relationship between § 52–251c and Rules of Professional Conduct;  concluding that Rules of Professional conduct are “SUBVERted when they are invoked by opposing parties as procedural weapons”);  see also Walpole Woodworkers, Inc. v. Manning, 307 Conn. 582, 586–87, 57 A.3d 730 (2012) (Recovery under theory of quantum meruit permissible in spite of exclusivity provision of the Home Improvement Act, General Statutes § 20–418 et seq., when contractor can establish that home owner invoked act in “bad faith”).   Here, however, given the Appellate Court's reversal of the judgment as to count three, there is no factual basis for a finding of bad faith on the part of the defendant.

Gilardi, Richard P., J.T.R.