LLC v. Neil Johnson (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUPPLEMENTAL ATTORNEYS FEES (# 219) MOTION FOR SUPPLEMENTAL POSTJUDGMENT INTEREST (# 229) MOTION FOR CONTEMPT AND OTHER SANCTIONS (# 236)

Following the successful defense of the appeal in this matter;  Creative Masonry & Chimney, LLC v. Johnson, 142 Conn.App. 135, 64 A.3d 359 (2013), cert. denied, 309 Conn. 903, 68 A.3d 658 (2013);  the plaintiff is seeking an award of supplemental attorneys fees and supplemental postjudgment interest.   The plaintiff has also moved for an order of contempt against the defendant for his failure to comply with two court orders directing the defendant to disclose his assets and to provide answers to interrogatories supplied by the plaintiff.

BACKGROUND

“The suit arises out of a written contract between the plaintiff, through its principal, Edward Sziabowski, and the defendant, Neil Johnson, to repair and renovate a chimney and fireplace at the defendant's home.   The defendant hired the plaintiff to do the work and agreed to pay the plaintiff $13,500 pursuant to the written contract.   During the course of the work, he falsely told the plaintiff that he was transferring money from an investment account to pay for the work, in order to induce the plaintiff to continue with and complete the work.   Upon completion of the work, the defendant made no complaints about the work, but did not pay a balance owed under the contract of $5,000.¹

“On June 28, 2011, a jury returned a verdict in favor of the plaintiff, Creative Masonry & Chimney, LLC, against the defendant, Neil Johnson, on counts of breach of contract, fraud, and violation of the Connecticut Unfair Trade Practices Act (CUTPA).   On the fraud count and the CUTPA [count], the jury found that the plaintiff is entitled to punitive damages.   Compensatory damages were assessed in the amount of $7,700.   On the verdict forms, the court indicated that it would make the determinations of any punitive damages.   The court accepted and recorded the verdict on June 28, 2011.”   Memorandum of Decision re Postjudgment Motions, September 30, 2011.

After a hearing on several postjudgment motions, the court awarded the plaintiff attorneys fees, associated trial costs, prejudgment interest costs, and punitive damages for the defendant's CUTPA violations.  Id. Thereafter the defendant appealed the jury's verdict as well as the court's award of punitive damages for the CUTPA violations.   The Appellate Court affirmed the trial court's judgment, including the award of punitive damages against the defendant.  Creative Masonry & Chimney, LLC v. Johnson, supra, 142 Conn.App. 135.   The defendant petitioned for certification with the Supreme Court, and on June 5, 2013, the defendant's petition was denied.  Creative Masonry & Chimney v. Johnson, supra, 309 Conn. 903.

Attorney Jon Schoenhorn represented the plaintiff in this matter at trial and through the appeal.   The plaintiff is seeking an award for supplemental attorneys fees for the successful defense of the appeal.   In his memorandum in support of the motion for supplemental fees, the plaintiff indicated that he had submitted an itemized bill to the defendant “in an effort to resolve any questions concerning the specific hours worked as well as the rate per hour,” and requested a hearing to address any other outstanding claims.   The court scheduled oral argument on the motion for August 26, 2013, at which time the defendant had the opportunity to examine the plaintiff's counsel as to the requested attorneys fees.   The plaintiff's counsel submitted that the legal standard set forth in his memorandum for attorneys fees filed in support of an award at the conclusion of the trial is also applicable in this matter and referred the court to that memorandum.²  The defendant filed an objection to the motion, but raised no objection to any line item on the bills or to the hourly rate.

At the hearing, the court inquired if there was an affidavit filed with the court.   Attorney Schoenhorn was relying on his previous affidavit requesting attorneys fees, and offered to take the stand to testify at this hearing.   The court did not require him to do so, and the defendant did not raise any issue at that time or previously in his objection.   After the hearing, the court ordered Attorney Schoenhorn to submit an affidavit regarding his request for supplemental attorneys fees referencing the billing statements previously filed with the court and with the defendant.   The defendant objects to the plaintiff being allowed to submit an affidavit after the “close of evidence and without a motion or request coming from the plaintiff.”   The court overrules his objection.   The court is within its power to request supplemental evidence in order to reach its decision.

A subsequent hearing was held on October 7, 2013, to address the plaintiff's motion for contempt.   At that hearing, the plaintiff produced Attorney Kathleen Eldergill to give testimony in support of Attorney Schoenhorn's hourly rate of $300 per hour.³  The defendant raised an objection to her affidavit arguing that he was not allowed the opportunity to cross examine her.   When the court called the matter at short calendar, the defendant was not, and the court allowed Attorney Eldergill to be excused and accepted her affidavit in lieu of her testimony.⁴

Attorney Schoenhorn has requested supplemental attorneys fees in the amount of $55,866.01, plus an additional $400 for the appearance of Attorney Eldergill at the subsequent hearing, as well as postjudgment interest on any award.

DISCUSSION

“General Statutes § 42–110g(d) provides in relevant part that, in any action in which a person alleges damages resulting from an unfair trade practice prohibited by § 42–110b of CUTPA, 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 the recovery ․” Smith v. Snyder, 267 Conn. 456, 470, 839 A.2d 589 (2004).  “It is well established that a trial court calculating a reasonable attorneys fee makes its determination while considering the factors set forth under rule 1.5(a) of the Rules of Professional Conduct ․ A court utilizing the factors of rule 1.5(a) considers, inter alia, the time and labor spent by the attorneys, the novelty and complexity of the legal issues, fees customarily charged in the same locality for similar services, the lawyer's experience and ability, relevant time limitations, the magnitude of the case and the results obtained, the nature and length of the lawyer-client relationship, and whether the fee is fixed or contingent.”  (Citations omitted;  internal quotation marks omitted.)  Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 259, 828 A.2d 64 (2003).

General Statutes § 42–110g(d) of the Connecticut Unfair Trade Practices Act (CUTPA) provides in relevant part:  “In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys fees based on the work reasonably performed by an attorney and not on the amount of recovery ․” Attorneys fees are also recoverable under CUTPA in connection with defending an appeal.   See Gill v. Petrazzuoli Bros., Inc., 10 Conn.App. 22, 33, 521 A.2d 212 (1987) (“Such fees and costs, however, often have not been exhausted by the time the jury returns its verdict ․ A successful plaintiff may be required to defend against a defendant's appeal ․”);  see also Gianetti v. Siglingler, Superior Court, judicial district of Fairfield, Docket No. CV–98–0349830–S (March 22, 2007);  Urich v. Fish, Superior Court, judicial district of New Haven, Docket No. CV–94–0360659 (January 24, 2001), judgment rev'd on other grounds, 261 Conn. 575, 804 A.2d 795 (2002);  12 Connecticut Practice Series § 6.11 (“Attorneys fees are also recoverable under CUTPA in connection with defending an appeal or in seeking court confirmation of an arbitration award” [footnote omitted] ).

The Appellate Court has set forth the basic framework that a court must follow when awarding attorneys fees under CUTPA:  “[T]he amount of attorneys fees that the trial court may award is based on the work reasonably performed by an attorney and not on the amount of recovery ․ [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 [outlined in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir.1974) ] ․ The Johnson factors may be relevant in adjusting the lodestar amount, but no one factor is a substitute for multiplying reasonable billing rates by a reasonable estimation of the number of hours expended on the litigation.”  (Footnote omitted;  internal quotation marks omitted.)   Carrillo v. Goldberg, 141 Conn.App. 299, 317–18, 61 A.3d 1164 (2013).

“The Johnson court set forth twelve factors for determining the reasonableness of an attorneys fee award, and they are:  the time and labor required;  the novelty and difficulty of the questions;  the skill requisite to perform the legal services properly;  the preclusion of other employment by the attorney due to acceptance of the case;  the customary fee;  whether the fee is fixed or contingent;  time limitations imposed by the client or the circumstances;  the amount involved and the results obtained;  the experience, reputation, and ability of the attorneys;  the undesirability of the case;  the nature and length of the professional relationship with the client;  and awards in similar cases.”  (Internal quotation marks omitted.)   Id., 317 n.10.

“[T]he trial court abuses its discretion if it considers only one of the twelve factors and completely excludes and disregards all of the others.”   Riggio v. Orkin Exterminating Co., Inc., 58 Conn.App. 309, 318, 753 A.2d 423, cert. denied, 254 Conn. 917, 759 A.2d 507 (2000).   Therefore, a court is “required to consider the full panoply of factors and not base its decision solely on one of the elements.”  Id.

“[T]o support an award of attorneys fees, there must be a clearly stated and described factual predicate for the fees sought, apart from the trial court's general knowledge of what constitutes a reasonable fee.   Although we have been careful not to limit the contours of what particular factual showing may suffice, our case law demonstrates that a threshold evidentiary showing is a prerequisite to an award of attorneys fees.”   State v. Snyder, 267 Conn. 456, 477, 839 A.2d 589 (2004).  “Accordingly, when a court is presented with a claim for attorneys fees, the proponent must present to the court at the time of trial or, in the case of a default judgment, at the hearing in damages, a statement of the fees requested and a description of services rendered.   Such a rule leaves no doubt about the burden on the party claiming attorneys fees and affords the opposing party an opportunity to challenge the amount requested at the appropriate time.”  (Footnote omitted.)  Id., 479.

“Parties must supply the court with a description of the nature and extent of the fees sought, to which the court may apply its knowledge and experience in determining the reasonableness of the fees requested.”  Id., 480.   Nevertheless, our Supreme Court has held that this requirement “does not limit the trial court's ability to assess the reasonableness of the fees requested using any number of factors, including its general knowledge of the case, sworn affidavits or other testimony, itemized bills, and the like ․ [t]he value [of reasonable attorneys fees] is based upon many considerations.”  (Internal quotation marks omitted.)  Id.

The plaintiff is entitled to recover attorneys fees arising from defending the appeal.   Counsel for the plaintiff has submitted time sheets and billings in excess of $55,000.   At the evidentiary hearing, the defendant was given the opportunity to challenge the amount sought, but failed to do so.   Considering all of the Johnson factors, and after careful review of the time sheets and billings, the court determines that an award of attorneys fees in the amount of $46,888.48 is fair and reasonable, and therefore awards that sum to the plaintiff.⁵

As to the motion for supplemental post-judgment interest, the court in its discretion denies the motion.   As to the motion for contempt and sanctions, the court has previously entered orders that the defendant is to provide the bank account numbers, monthly statements for those bank accounts for the last six months, IRA statements from 2011 forward, and the annuity account numbers and statements, as well as any corporate papers on the “gold mine.”   Those documents were to be provided to the plaintiff by October 20, 2013.

The plaintiff also orally requested that the court terminate any automatic stay upon the filing of this memorandum to which the defendant objected.   The court declines to issue any order regarding any termination of any automatic stay upon the filing of this decision.

CONCLUSION

Motion for supplemental attorneys fees is granted.   The defendant is ordered to pay $46,888.48 in attorneys fees.   Motion for supplemental postjudgment interest is denied.

Motion for contempt and other sanctions is denied without prejudice pending a determination whether the defendant has complied with the court's orders of October 7, 2013.

Swienton, J.

FOOTNOTES

FN1. The defendant's behavior during the time the plaintiff was attempting to collect the balance owed was nothing short than outrageous.   For example, in one instance when the defendant answered his cell phone identifying himself as Neil Johnson, when he discovered it was Sziabowki calling to collect his money, he began to speak in a falsetto tone, and said Neil Johnson was not available..  FN1. The defendant's behavior during the time the plaintiff was attempting to collect the balance owed was nothing short than outrageous.   For example, in one instance when the defendant answered his cell phone identifying himself as Neil Johnson, when he discovered it was Sziabowki calling to collect his money, he began to speak in a falsetto tone, and said Neil Johnson was not available.

FN2. In that memorandum in support of his motion for attorneys fees, Attorney Schoenhorn provided an affidavit of attorneys fees outlining his background and experience, copies of invoices sent to the plaintiff detailing a description of services rendered and costs.   At the hearing on that motion, the plaintiff also presented the testimony of Attorney Kathleen Eldergill who submitted an affidavit as well as appearing in person.   She testified at that hearing that a blended rate of $300 per hour for the work performed by Attorney Schoenhorn as well as his associates and staff is a reasonable rate charged.   Memorandum of Decision, re postjudgment motions, September 30, 2011..  FN2. In that memorandum in support of his motion for attorneys fees, Attorney Schoenhorn provided an affidavit of attorneys fees outlining his background and experience, copies of invoices sent to the plaintiff detailing a description of services rendered and costs.   At the hearing on that motion, the plaintiff also presented the testimony of Attorney Kathleen Eldergill who submitted an affidavit as well as appearing in person.   She testified at that hearing that a blended rate of $300 per hour for the work performed by Attorney Schoenhorn as well as his associates and staff is a reasonable rate charged.   Memorandum of Decision, re postjudgment motions, September 30, 2011.

FN3. The plaintiff filed an affidavit with the court of Attorney Eldergill, and the defendant filed an objection to its submission..  FN3. The plaintiff filed an affidavit with the court of Attorney Eldergill, and the defendant filed an objection to its submission.

FN4. The matter had been assigned for 9:30 and was called at approximately 9:50 a.m. The defendant appeared at approximately 9:56 a.m. after Attorney Eldergill had been excused.   At the previous hearing on the motion for supplemental attorneys fees, as noted, the defendant was given the opportunity to object to any line item of the billing statement and/or the hourly rate, but failed to do so.   Attorney Eldergill testified at the first hearing on the postjudgment motions, and the defendant had the opportunity to cross examine her at that time..  FN4. The matter had been assigned for 9:30 and was called at approximately 9:50 a.m. The defendant appeared at approximately 9:56 a.m. after Attorney Eldergill had been excused.   At the previous hearing on the motion for supplemental attorneys fees, as noted, the defendant was given the opportunity to object to any line item of the billing statement and/or the hourly rate, but failed to do so.   Attorney Eldergill testified at the first hearing on the postjudgment motions, and the defendant had the opportunity to cross examine her at that time.

FN5. The court has determined that some of the billing related to the enforcement of the judgment, and has not awarded fees for that time..  FN5. The court has determined that some of the billing related to the enforcement of the judgment, and has not awarded fees for that time.

Swienton, Cynthia K., J.