Jason Feinstein et al. v. David Keenan et al. (2013)

MEMORANDUM OF DECISION AFTER TRIAL

The plaintiffs Jason and Kelli Feinstein initiated this lawsuit in October 2010 by means of a three-count complaint alleging breach of provisions of residential home purchase and sale contract, fraud, and tortious behavior by the defendants David and Jennifer Keenan in connection with the sale of their home and real property located at 9 Sandhopper Trail in Westport, Connecticut to the Feinsteins.   Specifically, the amended, or third revised, complaint of May 2011 alleged that the Keenans failed to convey title to the property, did not deliver the property in the condition represented in the contract and failed to complete certain other contractual undertakings.   In addition, the plaintiffs alleged the defendants fraudulently represented the existing conditions of the residence and took steps to hide them.   Finally, it was alleged that defendants' failure to disclose certain conditions in the house caused the Feinsteins' three minor children to become sick from allergic reactions to mold requiring medical attention.   The plaintiffs sought compensatory and punitive damages and attorneys fees.   Dkt. Entry No. 107.00.

In their amended answer, special defenses and counterclaims, the defendants denied the material allegations of the complaint, and asserted, along with other special defenses, that any breach of contract claim was merged into the warranty deed given at closing, that the contract provision stating that plaintiffs had inspected the premises, were satisfied with the physical condition thereof and accepted the condition “as is,” and the establishment of an escrow fund by the defendants to fix certain conditions, acted as acceptance and waiver of claims.   The Keenans' counterclaims alleged that under Paragraph 37 of the contract, defendants were entitled to attorneys fees and costs if they prevailed in the litigation, and also sought reformation of the deed which was being contested by the Feinsteins.

Discovery proceeded, and a trial date was established for late 2012.   On November 5, 2012 the plaintiffs withdrew the third count of their complaint relating to their children's illnesses.   On November 15, 2012 the defendants moved to preclude many of the experts disclosed by the plaintiffs.   Dkt. Entry No. 148.00.   This court, which had been assigned to try the case, denied that motion contingent on the expert disclosures being speedily and substantially supplemented and expanded, and permitting dispositions of the properly disclosed experts.   The trial was postponed to January 28, 2013 to allow the disclosures and discovery to occur, and in light of plaintiffs' counsel, Attorney Joseph Brophy's, impending surgery.   The defendants sought as expeditious scheduling of the trial as possible.

On January 28, 2013 the plaintiffs began presentation of their case through questioning of Dr. Feinstein by their counsel Joseph Brophy, Esq. After the lunch break it was reported to court that Attorney Brophy has been taken to the emergency room at the Stamford Hospital, and plaintiffs made known their desire to bring in a new attorney.   The trial was postponed until there was further information obtained as to Attorney Brophy's medical condition, although the plaintiffs made clear they did not want to continue with Brophy.

On January 30, 2013 the plaintiff Kelli Feinstein representing herself, moved for a continuance of the trial in light of Attorney Brophy's illness and the plaintiffs' desire to obtain new counsel.   This motion was opposed by defendants who had opposed prior continuances, citing the expenses involved in re-preparing for trial and that the spectre of the claims against her kept Jennifer Keenan from obtaining a mortgage for new residence.

On February 5, 2013 Attorney Brophy appeared in court and requested to be relieved as counsel for the plaintiff on the grounds of his health and inability to get medical clearance to continue.   Attorney Mark Sank stated he would represent the plaintiffs, but only if he could get almost a two-month continuance to allow him to prepare.   A continuance of that length was opposed by the defendants, but the court, with reluctance, postponed the resumption of the trial to March 28, 2013.   Attorney Sank filed his appearance for the plaintiffs.   In late February 2013 new counsel, Attorney Adam Blank, along with the law firm of Wofsey, Rosen Kweskin & Kurianski, appeared in lieu of Attorney Sank. On March 28, 2013, the new trial date, the plaintiffs, through their new counsel, filed a request for leave to withdraw the second count of the complaint (fraud) and add a special defense of merger to the Keenans' counterclaim for breach of contract.   Simultaneously, the Feinsteins moved to have judgment enter against them and in favor of the Keenans on their first count (breach of contract) as well as in favor of the Keenans on their quiet title/reformation count of their counterclaim.   Dkt. Entries 185.00, 186.00.   The court ordered the withdrawal of the fraud count to be “with prejudice” so that it would have the effect of res judicata.   Dkt. Entry 189.86.   The motion for judgments described above was granted, and the Feinsteins' special defense was allowed.   Dkt. Entry 186.86.

The overall result of these developments was that the Feinsteins conceded defeat on all three of their initial claims against the Keenans, conceded defeat, also as to the Keenans' counterclaims, except for the claim that they are entitled to attorneys fees pursuant to the contract as the “prevailing party,” with respect to the Feinsteins' breach of contract claim.

II. Trial

The trial of the remaining claim in this case, i.e. the Keenans' contract claim for attorneys fees, took place on April 24, 2013.   The lead counsel for the defendants, Brendan O'Rourke, Esq., testified to the billing agreement between his firm and the Keenans, the work entailed in analyzing the issues, factual investigations, the conducting of fact discovery and expert opinion discovery, retaining experts and preparing for trial, which O'Rourke emphasized took place more than once.   O'Rourke also testified about his and the firm's personnel and litigation experience and the several problem areas that cropped up during the discovery and pre-trial phases of the case.   O'Rourke testified, without contradiction, that the total amount of fees and costs billed to the Keenans was $226,936.63 of which $197,082.50 had been paid.   Exhs. 503, 504.   These fees and costs were billed and paid pursuant to an “engagement letter” prepared by O'Rourke's firm and signed by the Keenans.   Ex. 500.   Further references to O'Rourke's testimony will be added in the ensuing discussion.

III. Discussion

A. Doctrine of Merger

The basis for the Keenans' counterclaim is Paragraph 37 of the standard form residential real estate purchase and sale contract executed by all the parties to this case.   The form agreement states on its face that it has been approved “by the Greater Bridgeport Bar Association.”   Ex. A to Keenans' Post–Trial Brief (hereafter “K. Br.”).   Paragraph 37 reads in full:

COSTS OF ENFORCEMENT.  (1) Except as otherwise provided herein, in the event of any litigation brought to enforce any material provision of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys fees and court costs from the other party.

The Feinsteins have admitted, as they must, that the Keenans were the “prevailing” parties on the Feinsteins' breach of contract claim.   However, they contend that their special defense of merger, supported by purported judicial admissions by the Keenans that the merger doctrine applies, precludes any claim by the Keenans for attorneys fees.   They also contend that the requested fees are unreasonable and that the amount claimed by the Keenans includes amounts that do not qualify as “court” costs.   These issues will now be considered by the court.

The merger doctrine, as espoused by both sides of this case at one time or another, is essentially the concept that the terms of a real estate deed, when passed and accepted, replaces the terms of the purchase and sale agreement, except when it does not.   As stated by the Connecticut Supreme Court, “under the principle of merger by deed, the terms of the deed would automatically replace and supercede the terms of the underlying contract, absent a reservation of collateral rights.”  Mongillo v. Commissioner of Transportation, 214 Conn. 225, 231 (1990).   In Biro v. Matz, 132 Conn.App. 272, 280–81 (2011) the Appellate Court reviewed prior case law where a court determined which provisions of the underlying contract no longer were binding on parties after the deed had been accepted and which provisions survived the deed.   E.g. Knight v. Breckheimer, 3 Conn.App. 487 (1985) (holding that seller's representation that the septic system would be in working order did not survive because of express language in agreement that the representation did not survive after delivery of the deed).

There are several provisions in the purchase and sale contract which the contract expressly states are to survive the deed.   See e.g. K. Brief, Ex. A, ¶ ¶ 2, 6, 9, 10, 33.   Paragraph 34 of the contract states:

The delivery and acceptance of the deed herein described shall be deemed to constitute full compliance with all terms, conditions, covenants and representations contained herein, or made in connection with this transaction, except as may be herein expressly provided and except for warranties of title.

Both sides in this case agree that no Connecticut court has “addressed' or “directly opined” as to the effect of the merger doctrine on an attorneys fee provision in a real estate contract.   See K. Brief, p. 10;  Feinstein (“F”) Brief, p. 11.

At the outset, it does not appear that Paragraph 37, the attorneys fees provision, fits very well into “the terms, conditions, covenants and representations” of the purchase and sale contract which are deemed to be fulfilled or complied with.   It is neither a covenant nor a representation as those words are generally used in real estate transactions.   It is not a “condition” of the contract because it does not provide any requirement to be fulfilled.   Finally, the court does not think the fee provision is necessarily a “term” of the contract.   That word is usually employed to describe a limit, boundary or a period of time.   It can also mean a condition of a contract.   Webster's New World College Dictionary, 4th ed., 2007, p. 1477.   As such, the words of Paragraph 34 can be interpreted not to include Paragraph 37.

The briefs are correct;  there does not appear to be any definitive on point Connecticut authority as to the effect of the merger doctrine on attorneys fee provisions, such as Paragraph 37.   For instance, in Mantell v. Varsos, Superior Court, CV 06 5006053, judicial district of Fairfield (April 19, 2010, Tobin, D., J.) (2010 WL 2196454), both sides in a dispute arising out of the sale of a residence claimed attorneys fees pursuant to an identical Paragraph 37 in the real estate contract.   The court found the plaintiffs failed to prove their claims and decided in favor of the defendants.   The court specifically held that it did not have to reach the issues raised by the defendants' special defense of merger, and without discussing that doctrine, awarded attorneys fees to the defendants as the prevailing party.   In Land Group, Inc. v. Birnie, Superior Court judicial district of Fairfield, CV 03 0400701 (Gilardi, J., July 19, 2005) (2005 WL 1971463), the court awarded the successful plaintiff attorneys fees under Paragraph 37 of the same form purchase and sale contract used in this case and Mantell v. Varsos.   However, there was no discussion of the merger doctrine.

In support of their respective positions, the parties have pointed out cases discussing the merger doctrine from other jurisdictions.   The court finds several of these cases instructive in articulating the meaning and purpose of the doctrine.   The defendants cite to Bull v. Willard, 9 Barb. 641 (N.Y.1850), a New York Court of Appeals decision which stated:

It frequently becomes a nice and difficult question to determine whether convenents contained in an agreement for the sale of land, are collateral to those providing for the execution of the deed, or are so connected with it, as to be at an end and become merged or satisfied in the execution of the deed.   I have not been able to fix upon a better criterion, upon that question, than that the covenant, in order to be deemed collateral and independent, so as not to be destroyed by the execution of the deed, must not look to, or be connected with the title, possession, quantity or emblements of the land which is the subject of the contract;  and if that it does so, the execution of the deed, in pursuance of the contract, will operate as an extinguishment of it;  and I am disposed to put this case upon that ground, and decide it by that rule.

Id., 645.¹  Similarly, the Supreme Court of New Jersey has held, “[the] rule of merger satisfies and extinguishes all previous covenants which relate to or are connected with the title, possession, quantity or emblements of the land.   Contemporaneously, those covenants in the antecedent contract which are not intended by the parties to be incorporated in the deed, or which are not necessarily satisfied by the execution and delivery of the deed, are collateral agreements and are preserved from merger ․ The test herein is whether the alleged collateral agreement is connected with the title, possession, quantity or emblements of the land which is the subject of the contract.”  Caparrelli v. Rolling Greens, Inc., 39 N.J. 585, 591 (1963).   Other similar holdings are found in Chavez v. Gomez, 77 N.M. 341 (1967), and Hutchens Bros., Inc. v. Brownsberger, 624 S.W.2d 538 Mo.Ct.App. (1981) (quoting from Bull v. Willard, supra ).

The cases cited by the plaintiffs from other jurisdictions are less persuasive.   In Bernhardt v. Gold Run, Inc., 68 Wash.App. 417, 843 P.2d 545 (1993), attorneys fees were denied to the prevailing party because the issue was whether a certain easement was supposed to be transferred, an issue which would be properly disposed of in the deed.   In fact, the Washington court noted that there was an exception to the merger doctrine when there were stipulations or undertakings in the purchase and sale agreement “not contained in, performed by and not inconsistent with the deed and which are held to be collateral to or independent of the obligation to convey.”  Id., 843 P.2d 559.   In Richardson v. Harding, 5 P.3d 793 (Supreme Court, Wyo.2000), the court held that an attorneys fee provision was merged into the deed.   However, the court did not consider the argument that the provision was collateral to the deed because that argument was only made for the first time before the Wyoming Supreme Court.   The court in Brennan v. Kunzle, 37 Kan.App. 365, cert. denied, 284 Kan. 945 (2007), denied attorneys fees.   But the Brennans sought the fees under a provision in a promissory note, and the court noted that “[t]hey never argued that they could recover attorney fees under the real estate contract.   Because the Brennans failed to argue this point before the court, it is unnecessary to address whether they are entitled to attorney fees under the real estate contract.”  Id., 394;  154 P.3d 1113.   Finally, the plaintiffs rely on Fleischer v. Hi–Rise Homes, Inc., 536 So.2d 1105 (1988) which addressed an attorneys fees provision in a brokers contract stating that the “prevailing party” was entitled to fees for “any litigation arising out of the contract.”   The fees were denied, because the court found the litigation did not arise out of the contract Id., 1105–06.   The Florida court went on to quote from a Missouri case,

[t]he essence of [the merger] doctrine is that when a vendor offers a deed, and the vendee accepts, that generally constitute a new agreement as to the form and contents of the deed which supercedes any contrary previous agreement.   By reason of that underlying rationale, the doctrine is basically confined to the sufficiency of the deed itself and does not touch other aspects of the original sales agreement.   Those other aspects are generally referred to in the cases as ‘collateral matters' which are not affected by the doctrine of merger.

Fleischer, supra, 1106–07 (quoting with approval from the case cited by the defendants, Hutchens Brothers v. Brownsberger, supra, 624 S.W.2d 540.)

Furthermore, a fair reading of the purchase and sale contract at issue, and a dollop of common sense, persuades this court there was no intention of the parties to merge Paragraph 37 of the contract out of existence by the mere passing of a deed that makes no mention of, or reference to, the existence, possibility or the consequences of litigation.   The fact that a deed was tendered and accepted would seemingly preclude the likelihood that any litigation preceded that event.   Therefore, merging Paragraph 37 out of existence at the time the deed is exchanged would largely make that provision nugatory from its inception.   That would not seem to be the intent of the contract provision, nor the intent of the contracting parties.   As the New York Court of Appeals said a century and a half ago:  ․

it is plain that the prior contract is superceded only as to such of its provisions as are covered by the conveyance made pursuant to its terms.   The agreement remains in full force as to all its other provisions.   This is so obvious, upon the reason of the thing that we need not seek for authority to sustain it.

Whitebeck v. Waine, 16 N.Y. 532 (1958) (footnote omitted).

Based on the terms of the contract, the case law in Connecticut and elsewhere, and the other reasons set forth above the court determines the doctrine of merger does not apply in this case as to Paragraph 37 which section remains enforceable by the Keenans.

Having concluded that under Connecticut law, the doctrine of merger would not eliminate the contractual provision on which the defendants rely for recovery, the plaintiffs' other arguments as to why the doctrine is applicable to this case become superfluous.   For the sake of completeness, however, the court will discuss two of these arguments.   First, the plaintiffs contend that the Keenans' assertions in their pleadings in this case that the doctrine of merger did apply and are judicial admissions binding on them.   The Feinsteins point to two examples.   In their last amended answer, special defenses and counterclaims (Dkt. Entry 165.00) the Keenans asserted a special defense that the terms of the purchase and sale contract “merged into the Warranty Deed” given the Feinsteins.   First Special Defense, ¶ 20.   In their first counterclaim, they alleged that Paragraph 35 of the purchase and sale contract, a provision that none of the representations and claims in the contract survived the deed.   First Counterclaim ¶ 61.

Judicial admissions are factual allegations contained in pleadings.   Such allegations prohibit a party making them from disputing those facts alleged.   Webster Bank v. Zak, 259 Conn. 766, 777 (2002).   The court finds that the assertion in the special defense that the terms of the purchase and sale contract “merged” into the deed is not an allegation of fact, but a statement of a legal position.   The assertions contained in Paragraph 61 of the first counterclaim concern Paragraph 35 of the purchase and sale contract which is not at issue in this case.

Second, the Feinsteins argue that the Keenans are estopped from denying the applicability of the merger doctrine because the Feinsteins were led to rely on the Keenans' contentions that the doctrine of merger applied in this case and therefore, the Feinsteins “permitted a judgment to enter in favor of the Keenans, and have not litigated their claims.”   F. Brief, p. 10.   This is patent nonsense, particularly coming from the parties who initiated the litigation in the first place.   While the court is not privy to the Feinsteins' motivation to allow judgment to enter against them on all their claims, it seems far more likely the realization that their employment of a very thorough home inspector and their express willingness to purchase the Keenans' house “as is” after the inspection report;  see K. Brief, Ex. A, ¶ 8;  made their case difficult to prove was the driving incentive for their actions.

It is worthy of notice as well that each pleading by the Keenans asserting the merger doctrine was denied by the Feinsteins.   Thus, the merger doctrine became part of the continual legal jousting between the parties and counsel, hardly the circumstances where it should become a dispositive judicial admission, or the basis for an estoppel argument.

B. Attorneys Fees and Costs

The Keenans bear the burden of proof of establishing their counterclaim seeking reasonable attorneys fees pursuant to Paragraph 37 of the purchase and sale contract.  Smith v. Snyder, 247 Conn. 456, 471 (2004).   While a court may apply its own knowledge as to what is a reasonable fee, it is incumbent to prove reasonableness by the submission of appropriate evidence.  Id., 471–72.

In support of their claim for fees, the Keenans have placed into evidence their retainer agreement with their attorneys O'Rourke & Associates, LLC which articulated the hourly rates for Attorney O'Rourke and two associates (Ex. 500) the individual bills which included descriptions of the work performed (Ex. 503) and a calculation of the total amount billed to and paid by the Keenans from November 2010 to April 2013.   As noted above, the amount sought is $226,936.63.

The fees are substantial, and some discussion of the nature of the case is necessary.   Shortly after the plaintiffs filed their third revised complaint in May 2011, they answered defendants' interrogatories and identified 32 different contractors who had inspected the house after the closing with the Keenans, and over 40 bills, reports and estimates (with more to come) purportedly evidencing the costs incurred repairing the house as a result of the Keenans' breach of contract and fraudulent representations.   K. Brief, Ex. C. As late as January 2013, after the trial date had been postponed twice, the Feinsteins submitted a calculation of claimed damages at $1,924,335.   Trial Exhs. 505, 506.   The damages included the sale price of the house and a long list of actual or needed repairs including house painting and a new roof.   It appears that certain of the claims and damages asserted in the May 2011 revised complaint arose as a result of a major “ice dam” and flood that occurred in the winter after the sale of the 9 Sandhopper Trail premises.

The court's own experience with the case included consideration of and a decision on the Keenans' motion to preclude eleven purported “expert” witnesses disclosed on the same day that Trial Management Reports from the parties were due.   See Dkt. Entry No. 142.00 (disclosure) and Dkt. Entry No. 148.00 (motion to preclude).   The Keenans' motion was well prepared and well taken and, as noted, resulted in requiring the Feinsteins to substantively and substantially expand their expert disclosures, but also resulted on delaying the trial date to late January 2013.

The Feinsteins have launched an all-out assault against Keenans' claim for attorneys fees.   If all their arguments were accepted, the fee claim would be reduced to under $50,000.   At the outset they observe, correctly, that Paragraph 37 only calls for attorneys fees to the prevailing party in connection with “litigation brought to enforce any material provision” of the purchase and sale contract.   They contend that the Keenans may not claim attorneys fees incurred in connection with defending the Feinsteins' fraud claim or the Keenans' counterclaim to reform the deed.   This contention is partially correct.

In Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, Inc., 308 Conn. 312 (2013), the Connecticut Supreme Court held that where a contractual provision calls for recovery of attorneys fees respecting some claims, but not others, all reasonable fees are recoverable “if apportionment [of the fees] is impracticable because the claims arise from a common nucleus and are intertwined.  Id., 333.   In this case, the Keenans argue the fraud claim, the negligence claim and the contract breach claim arose from a common set of allegations.   In large part that is true;  most of the serious alleged defects in the house were repeated in both the fraud and breach of contract counts.   Nevertheless, Attorney O'Rourke testified that between five and ten percent of the billed time could be allocated to the fraud and negligence counts against his clients.   On the basis of this concession that the claims were not so intertwined as to prevent a reasonable estimate by counsel, the court will reduce the overall bill by 7.5%. However, the Keenans' counterclaims for breach of contract and the claim for reformation of the deed arise out of the contract.   The reformation claim arose from a typographical error in the deed, making it nonconforming to the contract.

The Feinsteins also contend that the hourly rates charged by O'Rourke firm attorneys were excessive.   This argument has a modicum of merit.   While the rates charged by Attorney O'Rourke and his associates appear to be in line with those of other attorneys in this area of similar experience and competence, and the court has been impressed by the quality of the firm's work product and preparation, there were periods during the latter stages of the litigation when everyone billing time on the litigation was billing at a rate of $275.00 per hour, or more, even for the most mundane tasks.   See Trial Ex. 503, Jan. 11, 2013 bill.   In part, this reflects the circumstances of a small law firm that does not have an attorney at every level of experience on its payroll.   Nevertheless, it can, and did in this case, arise, in some small degree, to a level of unreasonableness.   The Feinsteins also argue at length that too much time was charged for certain legal work.   The court disagrees with this contention.   It is not unreasonable, for example, for two attorneys to review the third revised complaint or to review opposing parties' discovery responses (particularly when they are tardy and received less than a month before trial).   Because of the over-reliance on attorneys with high billing rates at certain times, the court will reduce the overall fees by five percent.

On the issue of reasonableness, neither side has spent much time arguing or discussing the factors set out in Rule 1.5(a), of the Connecticut Rules of Professional Conduct.   These factors generally follow those set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir.1974), and are used to adjust an initial “lodestar” calculation arrived at by multiplying a reasonable hourly rate by the number of attorney hours reasonably spent on the litigation.   The factors include:

(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) The likelihood, if made known to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) The fee customarily charged in the locality for similar legal services;

(4) The amount involved and the results obtained;

(5) The time limitations imposed by the client or by the circumstances;

(6) The nature and length of the professional relationship with the client;

(7) The experience, reputation, and ability of the lawyer of lawyers performing the services;  and

(8) Whether the fee is fixed or contingent.

Noel v. Ribbits, LLC, 132 Conn.App. 531, n.6 (2011).   This lack of attention may be due to the Appellate Court's somewhat inconsistent views as to the applicability of the Johnson factors.   For instance, a month after Noel v. Ribbits, supra the Appellate Court said the Johnson factors were not appropriate in a contractual dispute and generally were limited to fees in Connecticut Unfair Trade Practices Act cases.  Electrical, Wholesalers, Inc. v. V.P. Electrical, Inc., 132 Conn.App. 843 (2012).   Be that as it may, the court has found the hourly rates (with the exception noted earlier) and the time spent by the O'Rourke firm to be reasonable, and concludes that none of the factors set forth Rule 1.5(a) are significant enough to warrant any upward or downward adjustment.

The court agrees with the Feinsteins' argument that Paragraph 37's reference to “court costs” are limited the costs taxed by the court pursuant to ch. 901 of the General Statutes.   If costs other than the above taxable costs are meant to be included in an attorneys fees contract provision, it is a relatively simple, and often accomplished, task to add a phrase such as “plus reasonable litigation expenses” or “and reasonable expenses and disbursements.”   Such wording is not included in the contract at issue.   Nor can the expenses included in the bills sent to the Keenans such as “Westlaw Research Charges,” postage and court reporting services be encompassed in the term “attorneys fees” because they are billed separately from the fees.   The costs billed amount to $23,166.40 and shall be deducted from the amount sought.   The defendants correctly suggest that some of this deduction may be recouped by the receipt of taxable costs, and the defendants are entitled to file a suggested bill of costs.

In their opposition, the Feinsteins argue that the time spent by attorneys justifying the reasonableness of their attorneys fee is not recoverable.   Therefore, they contend that all fees incurred by the Keenans after March 28, 2013, when the Feinsteins moved to have an adverse judgment against them entered on their contract claim and withdrew their fraud claim, should not be recovered.   Several cases, none later than 1994, are cited for this proposition.   In St. Margaret McTernan School, Inc. v. Thompson, Superior Court, judicial district of Waterbury, D.N. 095264 (September 3, 1993, Pittman, J.) (1993 WL 360645), the Superior Court declined to award any fee for time spent preparing and prosecuting an attorney fee application that contained summaries of work done, but did not contain any information as to time spent on the matter or the hourly rates involved.   As authority for this step, the Superior Court cited Lewis v. Coughlin, 801 F.2d 570 (2d Cr.1986) a case where no time records were included with the fee application.  Id., 577.   Other cases cited by the Feinsteins on this point generally involve attorney fee applications which are heard in separate hearings after trial or in entirely separate lawsuits.   Critical differences in this case include the fact that the billings submitted so far involve the defense of the Feinstein's claims and the prosecution of the Keenans' counterclaims, both arising out of the contract.   Indeed, the actual trial of this case involved only the Keenans' contractual claim for fees.   In addition, the claims for fees has been stoutly defended since March 28, 2013 by the Feinsteins' assertion that the merger doctrine special defense they filed that day defeated the Keenans' claim for fees.   Therefore, much of the time billed after March 28, 2013 included litigating the Keenans' right to attorneys fees rather than the amount or reasonableness of the fees.   The attorneys fees presently before the court were incurred before April 23, 2013, the day before the trial, and make reference to a motion for attorneys fees only in the days leading up to its filing on April 22, 2013.   The motion itself was only seven pages, did not address the reasonableness of the fees, but rather focused on the plaintiff's argument that Paragraph 37 had been merged out of existence.   Dkt. Entry No. 194.00.   The court declines to reduce the fee request presently before it because it contains little, if any, fees attributable to simply justifying their reasonableness.

The plaintiffs also argue that the attorneys' bills submitted as Exhibit 503 contain insufficient detail as to the nature of the work done and the time taken to accomplish the task to allow a court to determine reasonableness.   The plaintiffs seek a 30% reduction of the bills on this issue alone.   The court rejects this argument.   These are instances where the description of the legal work billed for are terse and lacking some information.   Nevertheless, having reviewed all the bills submitted, the court finds enough information contained in the entries therein to understand what was done, and to determine whether the fee for it was reasonable.

Finally, the Feinsteins argue that “[m]uch of the reason for the excessive legal fees incurred by the Keenans' stems from their unwillingness to engage in settlement negotiations or even make a demand in this action.”   F. Brief, 14–15.   There is little support for this contention.   No evidence was presented of settlement negotiations occurring before the trial started in late January 2013;  indeed, the plaintiffs' interrogatory responses earlier that month clung to their claim of close to $2 million.   Apparently, some negotiations took place in March 2013, when the Feinsteins obtained new counsel for the second time in a month, and reduced their demand as to what the Keenans should pay, but the only evidence before the court was Attorney O'Rourke's testimony that he consistently demanded the full amount of fees incurred to date, and there is no evidence that this demand was countered in any fashion by the Feinsteins.²

V. Conclusion

After deducting $23,166.40 of costs not allowed by the contract from the requested amount of $226,936.63, leaving $203,770.23 in requested fees, the court makes the following revisions:  (1) a 7.5% reduction for work done not related to a contract claim, amounting to $15,282.77;  (2) a 5% reduction for unreasonable billing in the period leading up to trial, amounting to $10,188.51, and (3) $962.50 for the redacted work description.

The above downward revisions make the total fees recoverable by the Keenans pursuant to their breach of contract counterclaim $177,336.45.   Judgment for the defendants shall be entered in that amount.

The defendants may seek the allowance of taxable costs, and they may make an additional request for reasonable attorneys fees arising after April 22, 2013 with the provision that fees generated solely to establish the reasonableness of the fees will not be allowed.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. Emblements is defined as “cultivated growing crops,” or annual crops produced by labor or the profits therefrom.   Webster's New World College Dictionary (4th ed.2007) 464;  Black's Law Dictionary (9th ed.2009) 599..  FN1. Emblements is defined as “cultivated growing crops,” or annual crops produced by labor or the profits therefrom.   Webster's New World College Dictionary (4th ed.2007) 464;  Black's Law Dictionary (9th ed.2009) 599.

FN2. In a footnote the Feinsteins reference an agreement by counsel for the Keenans not to seek reimbursement for $962.50 of fees incurred in January 2013 for which the description of work was redacted.   F. Brief, 199.00, p. 19 n.4. The court does not have a clear recollection of this agreement, but since it has not been challenged by the Keenans, the court will deduct the above amount from the requested fees..  FN2. In a footnote the Feinsteins reference an agreement by counsel for the Keenans not to seek reimbursement for $962.50 of fees incurred in January 2013 for which the description of work was redacted.   F. Brief, 199.00, p. 19 n.4. The court does not have a clear recollection of this agreement, but since it has not been challenged by the Keenans, the court will deduct the above amount from the requested fees.

Adams, Taggart D., J.T.R.