Bernard Livingston v. Todd Frascarelli (2013)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR ATTORNEYS FEES

The plaintiff has filed this motion for attorneys fees pursuant to Connecticut Practice Book section 11–21 as well as pursuant to a stipulation of the parties prior to trial that the issue of attorneys fees would be reserved until subsequent to the court's decision on the case in chief.

The plaintiff brought this action in one count to collect proceeds due him as the assignee of a promissory note in the principal amount of $300,000 payable to his deceased wife.   The defendant raised several special defenses including challenging the plaintiff's status as a holder in due course, and significantly, that the note and debts due thereunder were extinguished by accord and satisfaction or forgiven as part of a previous settlement agreement.   While not spelled out in the special defenses themselves it was apparent during the trial that the defenses of accord and satisfaction as well as the defense of forgiveness of the note as a result of a previous settlement agreement dealt with a settlement agreement involving the defendant and the plaintiff's granddaughter Jennifer Livingston.

At the outset the court notes that while a general rule in Connecticut requires each party to bear the cost of its own attorneys fees, reasonable attorneys fees may be awarded to the prevailing party when called for by the provision of an applicable statute or contract.   See e.g. Total Recycling Services, Inc., v. Connecticut Oil Recycling Services, LLC, 308 Conn. 312 (2013).   The subject promissory note contained the following provision:  “In the event this note shall be in default, and placed with an attorney for collection, then the undersigned agree to pay all reasonable attorneys fees and costs of collection.”

“An award of attorneys fees is not a matter of right.   Whether an award is to be made and the amount thereof lie within the discretion of the trial court, which is in the best position to evaluate the particular circumstances of a case ․ A court has few duties of a more delicate nature than that of fixing counsel fees.  Bobinski v. Kalinowski, 107 Conn.App. 622, 628 (2008) quoting Federal Deposit Insurance Corp. v. Owen, 88 Conn.App. 806, 816 cert. denied, 275 Conn. 902 (2005) (internal quotation marks omitted.)   See also Hoenig v. Lubetkin, 137 Conn. 516, 525 (1951).   The Connecticut Supreme Court has held that there is an “undisputed requirement that the reasonableness of attorneys fees and costs must be proven by an appropriate evidentiary showing.”  Smith v. Snyder, 267 Conn. 456, 471 (2004) (emphasis in original) quoting Hartford Electric Company v. Tucker, 183 Conn. 85, 91 cert. denied, 454 U.S. 837 (1981).

The court is permitted “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 on many considerations Smith v. Snyder, 267 Conn. 456 at 480 (2004) (internal citations and internal quotation marks omitted).   See also Bobinski, supra at 629.

Our Supreme Court has also consistently stated that “the determination of reasonable attorneys fees is not limited to hours spent times hourly rate.”   Shapiro v. Mercedes, 262 Conn. 1, 8 (2002);  see also Andrews v. Gorby, 237 Conn. 12, 24 (1996).   Other factors such as those outlined in rule 1.5 of the rules of professional conduct can, when pertinent, also be taken into consideration in arriving at reasonable attorneys fees Shapiro, supra at 7. See also Conservation Commission of the Town of Fairfield v. Redd 11, 135 Conn.App. 765, 785–86 (citing with approval the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 715, 717–19 (5th cir.1974);  Rossi, Attorneys Fees, 2010 Thompson Reuter/West, 3rd ed., vol. 1, p. 4–5.  “For guidance in adjusting attorneys fees Connecticut courts have adopted the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 715, 717–19 (5th cir.1974).   The Johnson factors are (1) the time and labor required, (2) the novelty and difficulty of the questions, (3) the skill requisite to perform the legal services properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee for similar work in the community, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount and the results obtained, (9) the experience, reputation and ability of the attorneys, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client and (12) awards in similar cases.”  Ernst v. Deere and Co., 92 Conn.App. 572, 576 (2005) (citations and internal quotation marks omitted).

At the hearing on the motion for attorneys fees plaintiff's counsel testified and submitted his time records and billing statements.   Plaintiff's counsel testified that his firm had spent 226.8 hours in representing the plaintiff in this matter and had billed for attorneys fees in the amount of $72,853.00 plus costs of $4,395.92.   During cross examination and argument defense counsel asserted in that in excess of 32 hours of the billed time was spent on the family matter between Jennifer Livingston and the defendant;  that in excess of 53 hours were spent on a prejudgment remedy proceeding (it is not clear to the court why time spent on the prejudgment remedy proceedings should be discounted) and that over 15 hours were spent on matters that involved both the prejudgment remedy proceeding and the family matter.

The court's concern with regard to the plaintiff's request for attorneys fees and the amount of attorneys fees which are reasonable in this matter is more fundamental.   The amount of time spent on this matter, the difficulty of the matter and the complexity of the issues raised in this matter by the defendant's special defenses were directly related to the conduct of the plaintiff or unnecessary strategic decisions made by the plaintiff which caused this litigation to become significantly more protracted than was necessary.   In many cases the conduct of the plaintiff was careless or negligent and in some cases it was misleading in what would appear to be an effort to lull the defendant into altering his position vis-a-vis the plaintiff's granddaughter while not giving due attention to the plaintiff's claim.   The court will not repeat in detail the findings contained in its original decision but will reference the careless conduct of the plaintiff in omitting the note from the estate inventory and the misleading conduct of the plaintiff in promising the defendant that the note would be forgiven sometime in the future.   For reasons set forth in the original memorandum of decision none of these factors were sufficient to bar the plaintiff's claim but have certainly impacted and substantially affected the amount of time that was necessary to pursue the claim and gave rise to the defenses asserted by the defendant.

Moreover as a result of the evidence elicited during the hearing on attorneys fees it has become clear that the plaintiff first contacted counsel on May 26, 2010.   Counsel was retained shortly thereafter in early June 2010.   During June, July and August plaintiff's counsel had several conversations with Jennifer Livingston who at the time was engaged in litigation with the defendant in the family court which litigation included partition of their mutually owned home.   Negotiations incident to the litigation included the amount of funds that would be paid to the defendant by Jennifer Livingston in exchange for his conveyance of his interest in that home to her.

The plaintiff's wife (the original payee on the note) died on January 26, 2008 and the plaintiff in his capacity as executor assigned himself the note on January 5, 2009 and though the last payment by the defendant on the note was May 29, 2009 and though the plaintiff's counsel was consulted by the plaintiff in May 2010 and retained shortly thereafter, the plaintiff chose not to make demand for payment of the note or bring suit on the note until April 2011, shortly after the defendant and Jennifer entered into a settlement agreement which in part resulted in the defendant transferring all of his right title and interest to their mutual home (that had an approximate value of $1,200,000) in exchange for a $300,000 payment.

Notably the only time spent in the file by plaintiff's counsel between June 2010, when his firm was retained, and April 4, 2011 involved work done on days in which the plaintiff's counsel had conversations with either Jennifer or Jennifer's counsel in the family matter.   In April the defendant sent a demand letter and shortly thereafter began this action.

The plaintiff, in seeking the amount of the attorneys fees requested, noted that a significant component of time was spent as a result of the special defenses raised by the defendant.   That much is clear.   It is also clear that the plaintiff withheld from the defendant his intention to collect on this note until after the defendant's litigation with the plaintiff's granddaughter was settled and the defendant had altered his position.   It was this decision coupled with the plaintiff's previous conduct which gave rise to the special defenses and complexity of this litigation.

For the reasons indicated in the court's decision the plaintiff's conduct did not bar the plaintiff from recovery on the note but the court is unwilling to award the plaintiff attorneys fees for time spent as a result of the plaintiff's conduct as described in the court's memorandum of decision and strategic decisions as described herein.

The court has reviewed carefully the time records of the plaintiff's counsel and has determined that the reasonable amount of time spent for collection of the note that was not necessitated by the defendant's conduct and decisions was approximately 30 hours.   Applying an hourly rate of $300 an hour (which the court finds is a reasonable rate for a straight forward collection action on a promissory note) the court awards attorneys fees of $9,000.   The court also awards costs in the amount of $4,395.92.   Postjudgment interest is awarded at the rate of 2% per annum.   See Sikorsky Financial Credit Union, Inc. v. Butts, 144 Conn.App. 755 (2013).   Supplemental judgment in favor of the plaintiff may enter in accordance herewith.

GENUARIO, J.

Genuario, Robert L., J.