Mary Ann Booth, Exec. et al. v. David Waltz et al. (2014)

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR ATTORNEYS' AND EXPERT FEES AND COSTS

I. INTRODUCTION

Before the court is the plaintiff's motion for an award of attorneys and expert fees and costs.   This case began with the plaintiff asserting several claims against the defendants, including a claim seeking dissolution, pursuant to General Statutes § 33–896(a)(1), of Booth Waltz Enterprises, Inc. (“BWE”), the business at the heart of the parties' dispute.¹  In response, BWE, pursuant to General Statutes § 33–900, filed and served a notice of election to purchase the plaintiff's shares in BWE. Following a trial, the court, on December 14, 2012, issued a memorandum of decision determining the fair value of the plaintiff's shares in BWE. In that memorandum of decision, this court found that the defendants David Waltz and Jeffery Dodge, the other shareholders and directors of BWE, engaged in oppressive conduct towards their fellow shareholder, Frederick W. Booth, Jr. Based on this finding, the court noted in its memorandum that the plaintiff may be entitled to reasonable fees and expenses of her attorneys and expert pursuant to General Statutes § 33–900(e).   At the same time, the court also rejected all of the plaintiff's other tort claims against Waltz and Dodge, and entered judgment for the defendants on the second, third, fourth, fifth and seventh counts of the complaint.²

The plaintiff's motion seeks attorneys fees and expenses of $528,552.02 and expert fees of $180,030.00.   The attorneys fees and expenses include amounts paid to plaintiff's lead counsel, Bray & Bray, L.L.C., and her local counsel, Izard Nobel LLP. The expert fees sought are for work performed by the plaintiff's valuation expert, Theresa Simonds, and her firm, EisnerAmper LLP.

The defendants have opposed the motion on several grounds, disputing both the plaintiff's right to an award of fees given the facts of this case and the amount of fees and expenses requested.   The parties submitted a number of affidavits and other supporting documents to the court.   In addition, the court held a hearing at which the parties offered expert testimony as to the reasonable hourly rate for an attorney in Hartford, Connecticut to handle a matter such as this.   At that hearing, the plaintiff's trial expert as to valuation, Theresa Simonds, and the plaintiff's lead trial counsel, Peter Bray, testified as to their bills.   Attorney Bray also testified as to the parties' settlement discussions prior to trial.

Following the hearing, and at the court's request, the defendants submitted a detailed list of specific billing entries from the plaintiff's attorneys and expert that they claim should be disallowed.   The plaintiff filed a reply brief addressing the defendants' claims.

II. DISCUSSION

General Statutes § 33–900(e) provides in its last sentence that:  “In a proceeding under subdivision (1) of subsection (a) of section 33–896, if the court finds that the petitioning shareholder had probable grounds for relief under said subdivision, it may award the petitioning shareholder reasonable fees and expenses of counsel and of any expert employed by [her].”   There is no question that this language permits the award of such fees and expenses in this case.   The plaintiff brought this action under § 33–896(a)(1), and the court specifically found that two directors of BWE, Waltz and Dodge, acted in a manner that was oppressive towards Booth.   Such a finding though, does not require that the court award the plaintiff her reasonable fees and expenses of counsel and her expert.   The use of the word “may” in the statute clearly leaves the decision of whether to award such fees and expenses to the sound discretion of the trial court.  Jacques All Trade Corp. v. Brown, 57 Conn.App. 189, 197, 752 A.2 1098, (2000) (Holding that similar language in CUTPA, General Statutes § 42–100g, “clearly states that it is within the trial court's discretion in deciding whether to award attorneys fees”).

The plaintiff claims that the court should award her fees because:  1) she established the oppressive conduct of Waltz and Dodge;  and 2) BWE's legal fees in defending the action were covered by insurance, it will have benefitted from its “hardball” tactics if it is not required to reimburse the plaintiff's fees.

In response, the defendants argue that the plaintiff is not entitled to recover any fees because:  1) the plaintiff achieved little success in light of the fact that BWE was always prepared to pay her for the fair value of Booth's shares and she failed to succeed on any of her tort claims against the defendants;  2) the litigation was unnecessarily protracted by the plaintiff's refusal to engage in good faith negotiations over the value of Booth's shares;  3) the period of oppression found by the court was brief, particularly in light of the long relationship between Booth and Waltz that preceded any acts of oppression;  and 4) the court already compensated the plaintiff for any oppression by ordering BWE to pay an above market interest rate on the fair value of Booth's share from the date the action was instituted until BWE purchased the plaintiff's shares.

The court disagrees that the issues raised by the defendants preclude an award of any fees at all.   The language of § 33–896, similar to that of CUTPA and how it has been applied, is remedial in nature, and hence should be broadly interpreted.   Morrow v. Prestonwold, Inc., judicial district of New Haven, Docket No. CV 00 0445844 (March 21, 2002, Berdon, J.T.R.) [31 Conn. L. Rptr. 668] (Quoting Matter of Kemp and Beatley, Inc., 64 N.Y.2d 63, 73, 473 N.E.2d 1173 (1984) as to the remedial purpose of New York's corporate dissolution statute).   But for Waltz's and Dodge's oppressive conduct in late 2009, Booth would have had no reason to consult with counsel prior to his death about bringing this action.   Similarly, had Booth not been subject to the oppressive conduct, the plaintiff likely would have pursued a resolution of her involvement with BWE after her husband's death that did not involve moving to dissolve BWE. Because the defendants' actions were the precipitating cause for this action, they must bear at least some responsibility for the fees and expenses the plaintiff incurred in pursuing dissolution.

The fact that the period of oppression occurred over the last few months of Booth's life, as compared to his fifteen years of joint ownership of BWE with Waltz, does not alter this conclusion.   As detailed by the court in its memorandum of decision, the actions of Waltz and Dodge in late 2009 “were significantly inconsistent with and substantially defeated Booth's reasonable expectations [as a shareholder of BWE] in a number of respects.”   Memorandum of Decision, p. 49.   The evidence was clear that it was these specific acts of oppression that brought Booth to the brink of bringing suit shortly before his death, and led the plaintiff to file suit shortly after Booth died.   The court fails to see why a lack of oppression prior to December 2009 should be held against the plaintiff and in some way diminish the detrimental impact of the defendants' conduct.

Similarly unpersuasive is the defendants' reliance on this court's earlier determination of the interest rate to be applied to the fair value of the plaintiff's shares in BWE. The court took several factors into account in determining that 8% was the equitable rate of interest, including the fact that the only evidence the court had of BWE's cost of borrowing was a 2006 note from TD Bank that bore an interest rate of 7.35%, and the fact that the plaintiff was, in essence, an involuntary creditor of BWE by virtue of this action.   While the court noted that its determination of an equitable interest rate was based in part on the oppressive conduct of Waltz and Dodge, the court never intended that rate of interest to be a substitute for an award of reasonable fees and costs.

Finally, the plaintiff's degree of success and reasonableness during settlement negotiations do not, based on the facts of this case, act as complete bars to recovery of any fees and expenses contemplated by § 33–900.   They, instead, are factors the court will consider in determining what constitutes a reasonable award of fees and expenses.

The court now turns to the standards which govern any award of fees and costs.  “Whether any 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.”  (Citation omitted;  internal quotation marks omitted.)  Ernst v. Deere & Co., 92 Conn.App. 572, 575, 826 A.2d 845 (2005).   When exercising this discretion, “[i]t 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.”  Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 259, 828 A.2d. 64 (2003).   These factors are:  1) the time and labor required, taking into account the novelty of the question involved and the skill required to address it;  2) the likelihood that acceptance of the matter will preclude the attorney from other employment;  3) the fee customarily charged in the locality for similar legal services;  4) the amount involved and results obtained;  5) the time limitations imposed by the client or circumstances;  6) the nature and length of the professional relationship with the client;  7) the experience, reputation and ability of the lawyer;  and 8) whether the fee is fixed or contingent.  Rule of Professional Conduct 1.5(a).³

The court does not apply these factors in a vacuum.   The burden is on the party seeking an award of fees and costs to prove entitlement to them.   As our Supreme Court has stated:  “We have long held that there is an undisputed requirement that the reasonableness of attorneys fees and costs must be proven by an appropriate evidentiary showing ․ We also have noted that courts have a general knowledge of what would be reasonable compensation for services which are fairly stated and described;  ․ and that courts may rely on their general knowledge of what has occurred at the proceedings before them to supply evidence in support of an award of attorneys fees ․ Even though a court may employ its own knowledge in assessing the reasonableness of a claim for attorneys fees, we also have emphasized that no award for an attorneys fee may be made when the evidence is insufficient.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Smith v. Snyder, 267 Conn. 456, 471–72, 839 A.2d 589 (2004).   Applying these rules, the Court went on to hold that “to 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 ․ Accordingly, when a court is presented with a claim for attorneys fees, the proponent must present to the court ․ a statement of the fees requested and a description of the services rendered.”  Id., 477, 479.

Based on the evidence presented to the court in connection with the plaintiff's motion, the court concludes that many of the factors in Rule 1.5(a) are either irrelevant to the plaintiff's request for fees or costs or do not advance the plaintiff's claim.   For example, there was no evidence that taking this case precluded plaintiff's counsel or expert from taking on other employment.   Nor was counsel required to work under any particular time pressures imposed on them by their client or the court.   Furthermore, there was no evidence of any long-standing relationship between the plaintiff and her lawyers in this case.   Finally, the evidence is clear that plaintiff's counsel was paid a fixed fee based on their hourly rates and the number of hours they worked.   Consequently, counsel did not share in the risk inherent in the litigation.

In the end, the factors most relevant to the court's analysis of reasonable fees and expenses are, not surprisingly:  1) the amount of work required of plaintiff's counsel and expert;  2) the fee customarily charged in the locality for similar work;  3) the result achieved;  and 4) the experience, reputation and ability of the lawyer and expert.

As to the amount of work required, the plaintiff relies almost exclusively on the billing records of her lawyers and expert.   Exs. 2, 4–6.   These exhibits set forth the hours, or parts thereof, billed by the plaintiff's lawyers and expert on a monthly basis.   Bray & Bray claims to have spent 789.90 hours on this matter.   Ex. 6 at ¶ 9.   Izard Nobel claims to have spent 252.7 hours on the case.   Ex. 2 at Exhibit A. According to Ms. Simonds' affidavit, EisnerAmper spent 464.6 hours on their work on the matter.   Ex. 4 at ¶ 9.

In response, the defendants raise a number of objections to the hours claimed by the plaintiff.   First, they argue that none of the hours were necessary because the plaintiff refused to engage in the good faith settlement negotiations called for under § 33–900.   According to the defendants, they made multiple efforts to engage the plaintiff and, prior to his death, Booth in discussions regarding the sale of Booth's shares to Waltz, and the plaintiff and Booth refused to participate.   The defendants claim that had the plaintiff and Booth done so this entire litigation would have been unnecessary.

The court is not persuaded.   As an initial matter, the sale discussions with Booth prior to his death are of little relevance here.   Booth had no obligation to engage in any discussions to sell his shares to Waltz.   In fact, he informed Waltz in late 2009 that he had decided not to sell his shares.   It was this decision that led the defendants to engage in their oppressive conduct towards Booth.   The defendants cannot use Booth's desire to remain an owner of BWE and his refusal to cave in to the defendants' oppressive conduct as reasons to deny the plaintiff the fees and expenses she incurred to address the oppressive conduct.

The defendants' efforts to engage in settlement discussions with the plaintiff raise different issues.   Subsections (c) and (d) provide for a sixty-day period after an election to purchase for the parties to reach an agreement on the purchase price of the petitioner's shares.   If no such agreement is reached during that period, then the court determines the fair value of the petitioner's shares.   Furthermore, subsection (e) provides that “if the court finds that the refusal of the petitioning shareholder to accept an offer of payment was arbitrary or otherwise not in good faith” the court shall not allow interest on the amounts due the petitioning shareholder for her shares.

The defendants claim that, despite their efforts both before and during the litigation, the plaintiff failed to participate in good faith settlement negotiations.   Had the defendants offered to purchase the plaintiff's shares at a price equal to or greater than the fair value determined by the court, this argument might have merit.   However, the defendants have presented no evidence of such an offer.   To the contrary, they merely have presented evidence of what they describe as “very reasonable, opening offers.”   Defendants' Opposition, February 28, 2013, at p. 11.   While they fault the plaintiff for failing to respond to these offers, there is nothing in § 33–900 that required her to do so.   The statute makes clear that the risk the plaintiff took in not accepting the defendants' offer was that she would be denied an award of interest if her refusal was arbitrary or not in good faith.   That is hardly the case here as her recovery exceeded any offer made by the defendants.

In addition, unlike the cases relied upon by the defendants, here there is no evidence that further negotiations would have produced a result for the plaintiff equal to or better than that obtained during the litigation.   Without some evidence that the defendants voluntarily would have paid the amount ultimately awarded by the court, such a conclusion would be the result of pure speculation.

Finally, the evidence presented shows that the closest the defendants came to offering an amount approaching the fair value determined by the court, plus interest, came in an offer made by Attorney Ciociola to Attorney Bray on May 6, 2012, literally on the eve of trial.   According to Attorney Ciociola's affidavit, the defendants' offer was $6.8 million for the plaintiff's BWE stock.   Ex. A, at ¶ 9.   Attorney Ciociola's affidavit though does not address whether this offer would also include additional interest from when the plaintiff instituted the action, almost two years earlier.   Because such interest would further add hundreds of thousands of dollars to the amount recovered by the plaintiff, putting the total amount due the plaintiff above $7 million, the defendants' offer was still significantly below the $6,685,155, plus interest awarded by the court.   Consequently, the court cannot determine that the plaintiff acted in bad faith by rejecting this offer.   This is particularly true given that Attorney Bray specifically told Attorney Ciociola that the plaintiff would make a countervailing demand to an offer above $7 million.  Id. The defendants were apparently unwilling to make such an offer.

For all of the above reasons, the court concludes that the plaintiff's failure to conclude this matter by way of settlement does not preclude or limit her award of reasonable fees and expenses in this matter.

The defendants also object to the hours claimed by the plaintiff because not all of those hours were spent pursuing the issue of fair value.   Instead, the defendants argue, the plaintiff spent a substantial amount of time pursuing individual tort claims unrelated to the issue of valuation.   They further argue that the plaintiff retained counsel to represent her on other matters unrelated to this litigation.   For example, Bray & Bray, L.L.C. represented the plaintiff in pursuing a workers' compensation claim arising out of Booth's death.   The firm also represented the plaintiff in connection with her investment in one of the real estate limited liability companies, Bay Street Property, LLC. Finally, the defendants argue that the hours claimed by the plaintiffs should be reduced for time spent on motions and other proceedings that added no value to the plaintiff's claim for fair value.   In particular, the defendants argue that time spent on the plaintiff's motion to enjoin a corporate transaction of BWE and for a prejudgment remedy should not be allowed.

In response, the plaintiff argues that she was not required to recover on all legal theories in order to be awarded reasonable fees and expenses, so long as she succeeded in her overall objective.  Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 194–95, 510 A.2d 972 (1986).   She further argues that she is entitled to receive the full fee requested where apportionment among claims is impractical.  Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, 308 Conn. 312, 333, 63 A.3d 896 (2013).

The plaintiff's reliance on Russell is misplaced.   In that case, the Supreme Court determined that the plaintiff's fee award did not have to be reduced for unsuccessful claims “[b]ecause the amounts he expended on litigation, including the dollars spent on his unsuccessful claims, were devoted to the pursuit of a goal that he achieved.”  Russell, supra, 200 Conn. 195.   That is not the case here.   Unlike in Russell, the plaintiff's tort claims here were not alternative theories of recovery that would lead to the same measure of damages.   They were asserted by the plaintiff in an effort to secure damages over and above the fair value of her shares in BWE. In the second count of the complaint, the plaintiff alleged that the wrongful conduct of defendants Waltz, Dodge, and McNickle damaged the value of BWE, and that they diverted the company's money for their personal use.   Similarly, in the fourth count, the plaintiff claimed that the same defendants usurped control over the corporation for their own benefit.   In the seventh count, the plaintiff alleged that the same defendants entered into a conspiracy to drive Booth out of BWE. For these wrongs, the plaintiff sought damages of $3,216,200 in damages.   This amount was for money the plaintiff claims was not properly distributed to Booth or the plaintiff and was over and above any claim for the fair value of Booth's shares.   Similarly, the sixth count, which sought dissolution of the limited liability companies sought relief that was independent and separate from the plaintiff's claims under §§ 33–896 and 33–900.

Only the fifth count, which asserted a claim relating to a transaction Waltz and Dodge personally entered into with another company, KB Page, related to the valuation issues.   In that transaction, BWE lent Waltz and Dodge $970,000 so that they could complete their acquisition of 50% of KB Page. How that loan should be treated was an issue the court had to resolve as part of its determination of the fair value of the plaintiff's shares in BWE. Thus, although the plaintiff did not prevail on the fifth count, the same issues raised in that count had to be raised as part of the first count on which the plaintiff did prevail.   For this reason, only as to the fifth count does the rationale in Russell apply to the plaintiff's claim for fees and expenses.   Otherwise, to the extent apportionment is practicable, the plaintiff is not entitled to recover the fees and expenses incurred in pursuing the second, fourth, sixth and seventh counts.⁴

This conclusion is consistent with our Supreme Court's holding in Total Recycling Services of Connecticut, Inc., upon which the plaintiff also relies.   In that case, the court addressed, for the first time, how a court should address an application for attorneys fees when some of the claims alleged permitted an award of fees and others did not.   After analyzing case law in other jurisdictions, the court held:  “Accordingly, when certain claims provide for a party's recovery of ․ attorneys fees but others do not, a party is nevertheless entitled to a full recovery of reasonable attorneys fees if an apportionment is impracticable because the claims arise from a common factual nucleus and are intertwined.”  Total Recycling Services of Connecticut, Inc., supra, 308 Conn. 333.   For example, where a plaintiff and a defendant enter into multiple contracts that are intended to constitute a single transaction, and only one such contract contains an attorneys fees provision, the plaintiff may nevertheless recover attorneys fees where the claims are inter-related and the hours spent prosecuting the claims “were in pursuit of one common goal.”  Id. Similarly, a plaintiff that is entitled to recover attorneys fees on her complaint does not have to segregate out the costs of defending against the defendant's counterclaims where the counterclaims arose out of the contract and were factually intertwined with the plaintiff's claim.  Id., 330–31.

In this case, the claims asserted by the plaintiff in the second, fourth, sixth, and seventh counts were in pursuit of a different goal than the claim asserted in the first count.   While the first count sought a determination of the fair value of the plaintiff's shares in BWE, the second, fourth, and seventh counts sought separate damages for alleged tortious conduct.   The sixth count sought the dissolution of corporate entities other than BWE. Nevertheless, some of the facts related to those claims were intertwined with the facts underlying the first count.   For example, in proving that the defendants engaged in oppressive conduct in the first count, the plaintiff presented evidence which was also offered in support of her tort claims.   In particular, the plaintiff's oppression claim was based, in part, on the substantial increases in compensation Waltz and Dodge awarded themselves in December 2009 and the “deferred compensation” they voted for Waltz at the same time.   These same actions were part of the basis for the plaintiff's claims in the second, fourth, and seventh counts.   Similarly, the nature of the parties' relationship that was relevant to the oppression claim was also relevant to the court's determination that the limited liability companies should be dissolved pursuant to the plaintiff's claim in the sixth count.

Given the above, the court determines that the plaintiff is entitled to reasonable attorneys and expert fees incurred in pursuing the first count, even if the work performed was also used in pursuing the other counts of the complaint.

As to this issue, the defendants provided a detailed listing of all of the time entries they claim show no relationship to the first count.   As noted above, the party claiming fees bears the burden of providing the court with a statement of the fees requested and a description of the services rendered.   While providing the court with contemporaneous billing records and associated time sheets is a customary method of meeting this burden, the materials submitted must contain sufficient detail from which the court can determine the reasonableness of the time spent and whether the time entries relate to the legal basis for the award of the fees.   An entry that simply refers to work on an unspecified motion or mentions a telephone call without any other detail is not enough.   Consequently, the court agrees with most of the defendants' detailed objections to specific billing entries submitted by the plaintiff.   The court further reaches this conclusion because the plaintiff has done little to address the deficiencies noted by the defendants.⁵

Based on a review of the billing records submitted by the plaintiff and the objections submitted by the defendants, the court concludes that approximately 25% of the time requested by Attorney Bray was either not related to the first count or inadequately documented.   Similarly, given that Attorney Bray's paralegal, Geri Maturo, was acting in a support role to Attorney Bray, her hours should similarly be reduced by 25% in determining the amount of time required to pursue the claim in the first count.⁶

Bray & Bray also claims that Attorney Geoffrey Bray spent 8.8 hours on this matter that should be awarded.   The defendants argue that there is no evidence that his time related to the first count.   The court agrees.   His four entries all related to research.   The only entry that described the type of research performed was his first entry on May 17, 2010 that described the research as relating to a wrongful death claim.   Three other entries on July 30, 2010 provide no description of the research performed.   Without more, the plaintiff has failed to demonstrate that any of this time related to the claim asserted in the first count.

With respect to Izard Nobel, in addition to arguing that the time spent was inadequately documented, the defendants argue that the court should award no fees for their work because they were only needed due to the plaintiff's decision to hire a law firm from outside of Connecticut as lead counsel.   They argue, correctly, that had the plaintiff hired a Connecticut firm local counsel would not have been necessary.   They further argue that Attorney Nobel simply attended depositions and trial because he was required to do so as local counsel and provided no additional work necessary to the prosecution of the first count.   Similarly, they argue that had the plaintiff hired a Connecticut firm as lead counsel, the substantial fees incurred in connection with filing and correcting applications for Attorney Bray to appear pro hac vice could have been avoided.

If Izard Nobel had acted solely as local counsel, the defendants' argument might have merit.   There is no reason that the defendants should have to pay additional attorneys fees simply because the plaintiff chose to hire an attorney from outside of Connecticut.   This is particularly true given that there does not appear to be any long-standing relationship between Bray & Bray and the plaintiff, and this matter did not require specialized skill or knowledge that was not available from attorneys in this state.⁷

The court does not view Izard Nobel's role as so limited.   Attorney Nobel acted as Attorney Bray's second chair, much like Attorney Thompson acted as Attorney Ciociola's second chair.   While Attorney Nobel did not examine any witnesses, it was clear to the court that Attorney Bray regularly consulted with him, and that Attorney Nobel's contributions to the plaintiff's case were substantive.   Nevertheless, a reduction in Izard Nobel's time is appropriate because many of its billing entries are as vague, if not more so, than are Attorney Bray's.   In addition, there clearly were a number of entries related to Izard Nobel's role as local counsel, including substantial hours spent on Attorney Bray's pro hac vice motion.   Based on a review of the Izard Nobel bills, and considering Attorney Nobel's role as supportive of Attorney Bray's efforts, the court concludes that Izard Nobel's hours should be reduced by 30% to reflect what was necessary and reasonable to pursue the first count.

The court now turns to the rates customarily charged in the locality for similar legal services.   More specifically, the question is what would comparable counsel charge to handle a valuation dispute arising under §§ 33–896 and 33–900.   First, the parties disagree over the hourly rate sought for Attorney Bray's work.   Attorney Bray, a New Jersey admitted attorney, billed the plaintiff $575 per hour over the course of his representation.   The plaintiff supports the request for such a rate with the affidavit of Frank Coulom, a partner in Robinson & Cole LLP's Hartford office.   Attorney Coulom has been handling complex litigation matters for over 29 years.   He has tried such cases in state and federal court.   For at least 15 years, he has been involved in adjusting his firm's rates and monitoring the billing rates of other firms in Connecticut and elsewhere.   According to Attorney Coulom, the partners at Robinson & Cole who do the type of work at issue here charge between $380 and $640 per hour.   Fifty percent of his partners in this area charge between $550 and $640 per hour.   Consequently, Attorney Coulom opined that the $575 per hour charged by Attorney Bray was “reasonable and appropriate for the type and complexity of the case and are comparable to or more economical than the hourly rates charged by attorneys of similar experience and in suits of this type in this market.”   Ex. 1, at ¶ 14.

In response, the defendants offered the testimony of Attorney Michael O'Connell, the senior partner of O'Connell, Atmore & Morris, a Hartford firm founded in 1987.   Attorney O'Connell began practicing in 1972 and has handled litigation involving closely-held corporations and claims of oppression.   He has represented both plaintiffs and defendants in such disputes.   Like Attorney Coulom, Attorney O'Connell is involved in setting his firm's rates and is familiar with the rates charged by other firms in Connecticut for similar work.   According to Attorney O'Connell the predominant rate in Hartford for the type of work performed by Attorney Bray here ranges from $275 per hour to $400 per hour.   He recognized that there are firms that charge more or less than this rate, but opined that his range would cover the vast majority of rates under a bell curve.   He did testify though that he was not opining that Attorney Bray's rate was unreasonable.

The court is familiar with both Attorney Coulom and Attorney O'Connell.   The court finds both of them to be highly experienced, capable and well regarded among their peers.   Both testified credibly.   The court attributes the differences in their testimony to differences in the size and market focus of their firms.   Consequently, the court concludes that the best way to assess the reasonable rate here is to look at the complexity of this particular case and determine whether Attorney Bray's hourly rate is reasonable among Hartford attorneys.

All cases like this are somewhat complex because the valuation process involves analyzing transactions and record keeping which is often not as clear as similar records are for publicly traded companies.   That certainly was the case here.   For example, a great deal of time was spent analyzing Waltz's personal credit card transactions to see if they were for company business as he claimed.   Furthermore, the issue of valuation is complicated because there is not a ready market for the parties' shares in the company.

On the other hand, the responsibility for working through most of these valuation intricacies will typically fall to the parties' experts.   That is what happened here.

Yet, contrary to what the defendants suggest, this was not a run of the mill valuation of a small business.   BWE experienced a rapid expansion of its business in the years leading up to the valuation date.   This expansion included the acquisition of other businesses.   The experts and attorneys were required to analyze these recent changes and how they impacted the value of the business.   This added a complication that does not exist when the business being valued has a long history of relatively stable performance.   In addition, the plaintiff asserted and had to prove oppression by the defendants.   She, with the assistance of her counsel, successfully did so.   The court witnessed Attorney Bray's skills first hand.   He competently and effectively pursued the claims set forth in the first count.   He showed a familiarity with and understanding of complicated financial issues that one would expect of a seasoned litigator who has handled a number of these matters.

Given the nature of the case, and Attorney Bray's handling of it, the court concludes that his hourly rate of $575 per hour was reasonable and consistent with the rates charged by other similarly experienced attorneys in Hartford to handle a similarly complex matter.   As Attorney O'Connell in effect conceded, the fact that other attorneys in Hartford may charge a lower hourly rate to handle such matters does not mean that Attorney Bray's rate is unreasonable.

The defendants have not challenged the $200 per hour rate of Bray & Bray's paralegal, Geri Maturo, as unreasonable.   The court, based on its knowledge of rates charged for similar work in Hartford, finds the rate charged for Ms. Maturo's work to be reasonable and in line with the rates charged for similar paralegal work in Hartford.

With respect to Izard Nobel's rates, the court considers what is reasonable given the firm's role as supporting Attorney Bray, specifically Attorney Nobel's role as second chair to Attorney Bray. Such a role does not warrant an hourly rate of $540 or $600 as claimed by the plaintiff.   Instead, the court concludes that a reasonable rate for the work billed by Izard Nobel is a blended rate of $275 per hour.⁸

The third factor the court must consider is the result obtained by the plaintiff.   The court has already considered this factor when it reduced the hours billed by the plaintiff's counsel by 25% and 30%.   The plaintiff fully prevailed on her objective in the first count.   The court largely accepted the valuation of the plaintiff's expert, rejected the valuation of the defendants' expert as unreasonable, and found that the plaintiff had proved her claim of oppression.   The court rejected the plaintiff's other claims, and agrees that the plaintiff is not entitled to the cost of pursuing those other claims.   However, the court already reduced the hours of plaintiff's counsel by 25% and 30% to take into account the time spent on pursuing those claims.   The court believes that any further adjustment would be unreasonable and unwarranted.

The final factor for the court to consider is the experience, reputation, and ability of the plaintiff's attorneys.   As set forth above, the court has already taken these factors into account in determining the reasonable hourly rates to be applied here.   No further adjustments are necessary or appropriate.

Based on all of the foregoing, the court awards the plaintiff reasonable attorneys fees as follows:

Bray & Bray L.L.C:  Peter Bray—$288,937.50 (502.5 hrs x $575) + Geri Maturo—$16,620 (83.1 hrs x $200) + Expenses—$10,588.62 = $316,146.12

Izard Nobel LLP:  Fees—$48,675.00 (177 hrs. x $275) + Expenses—$2,907.03 = $51,582.03

The court now turns to the plaintiff's request for the reasonable fees of her expert, Theresa Simonds of EisnerAmper L.L.P. Ms. Simonds submitted all of her bills which detailed all of the work she and her associates performed on this matter.   The defendants object to the amounts claimed in these bills for a variety of reasons, including a lack of detail, and time spent pursuing issues that ultimately were unsuccessful.

The court is unpersuaded by any of the defendants' arguments.   First, the concern for specificity in the bills is unwarranted.   Ms. Simonds was engaged for one purpose only—to determine the fair value of BWE. She and her team spent no time in support of the plaintiff's other claims.   Consequently, the court does not have the same concern it did with respect to the plaintiff's claimed attorneys fees.   Furthermore, Ms. Simonds testified at length at both the prejudgment remedy hearing and at trial as to the specific work done by her and her associates.   The time reflected in her bills is completely consistent with her testimony.   In addition, the defendants have offered no expert opinion that the time spent by Ms. Simonds and her team was not reasonable.   It would have been easy for them to do so given that they had their own expert perform an analysis of fair value similar to that done by Ms. Simonds.   The defendants could have submitted an affidavit from their expert or offered his bills as evidence as to the reasonable cost of such work.   They did neither.

The court is equally unimpressed with the defendants' efforts to reduce Ms. Simonds' bills for time they claim was spent on ineffective endeavors.   First, they claim that Ms. Simonds spent too much time examining Waltz's credit cards for personal charges.   They claim that she should not be compensated for this time because the court concluded that there was no proof of personal use by Waltz.

The court disagrees.   Despite the court's finding as to the use of the credit card, it is clear that examination of the charges was necessary.   Consequently, Ms. Simonds' fees for doing so were reasonable and necessary.

Second, the defendants argue that Ms. Simonds' time spent analyzing certain transactions which the court concluded were not comparable should be deducted from any fees awarded.   Again, the court disagrees.   The court largely accepted Ms. Simonds' opinion as to fair value.   It found her methodologies much more reliable than those used by the defendants' expert.   The fact that the court did not agree with Ms. Simonds on every single point does not alter the fact that overall she was a credible, competent expert, who diligently performed her work, and on whom the court greatly relied.   For the same reason, the court rejects the defendant's other line item oppositions to Ms. Simonds' bills.   Consequently, the court awards the plaintiff reasonable expert fees and expenses of $180,030.

III. CONCLUSION

Pursuant to General Statutes § 33–900(e), the court awards the plaintiff reasonable attorneys fees and expenses of $367,728.15.   It also awards reasonable expert fees and expenses of $180,030.

Bright, J.

FOOTNOTES

FN1. Rather than restate the background of the parties' disputes and the various claims asserted by the plaintiff and the defendants' responses to those claims, the court refers the reader to the court's December 14, 2012 Memorandum of Decision..  FN1. Rather than restate the background of the parties' disputes and the various claims asserted by the plaintiff and the defendants' responses to those claims, the court refers the reader to the court's December 14, 2012 Memorandum of Decision.

FN2. The court ordered a hearing on the other remaining count of the complaint—the sixth count, which sought dissolution of certain related limited liability companies owned by the plaintiff, Waltz, and, in one case, Dodge.   Following a further hearing, the court entered judgment on that count on April 30, 2013..  FN2. The court ordered a hearing on the other remaining count of the complaint—the sixth count, which sought dissolution of certain related limited liability companies owned by the plaintiff, Waltz, and, in one case, Dodge.   Following a further hearing, the court entered judgment on that count on April 30, 2013.

FN3. Our Appellate Court has also looked to the twelve-factor test set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir.1974), for guidance in adjusting attorneys fees.  Ernst v. Deere & Co, supra, 92 Conn.App. 576.   Those factors are substantively the same as the eight factors set forth in Rule 1.5(a)..  FN3. Our Appellate Court has also looked to the twelve-factor test set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir.1974), for guidance in adjusting attorneys fees.  Ernst v. Deere & Co, supra, 92 Conn.App. 576.   Those factors are substantively the same as the eight factors set forth in Rule 1.5(a).

FN4. The third count is immaterial to this analysis.   In that count, the plaintiff sought an accounting.   That claim was made moot by the fact that the defendants turned over all of the records of BWE as part of the valuation process..  FN4. The third count is immaterial to this analysis.   In that count, the plaintiff sought an accounting.   That claim was made moot by the fact that the defendants turned over all of the records of BWE as part of the valuation process.

FN5. At the close of the hearing on the plaintiff's application, the court asked the defendants to provide a detailed listing of the billing entries to which they had an objection.   They did so in a 37–page filing dated September 27, 2013 that identified each entry objected to by date, description of services, the hours charged, and the objection to the entry.   In response, the plaintiff filed a five-page reply on October 7, 2013.   In roughly two pages of that reply, the plaintiff summarily addressed the issues raised in the defendants' September 27, 2013 filing.   Rather than address the defendants' specific claims of insufficient description in the entries, the plaintiff argues that the defendants should have explored the reasons for the entries during discovery or at the hearing.   This position misplaces the burden on the defendants to disprove the fees claimed by the plaintiff.   That is not the law.   The plaintiff had the burden of proving the reasonableness and applicability of their work to the oppression claim.   Furthermore, the court gave her the opportunity to do so in direct response to the defendants' detailed objections.   She chose not to use that opportunity and must live with the consequences of that decision..  FN5. At the close of the hearing on the plaintiff's application, the court asked the defendants to provide a detailed listing of the billing entries to which they had an objection.   They did so in a 37–page filing dated September 27, 2013 that identified each entry objected to by date, description of services, the hours charged, and the objection to the entry.   In response, the plaintiff filed a five-page reply on October 7, 2013.   In roughly two pages of that reply, the plaintiff summarily addressed the issues raised in the defendants' September 27, 2013 filing.   Rather than address the defendants' specific claims of insufficient description in the entries, the plaintiff argues that the defendants should have explored the reasons for the entries during discovery or at the hearing.   This position misplaces the burden on the defendants to disprove the fees claimed by the plaintiff.   That is not the law.   The plaintiff had the burden of proving the reasonableness and applicability of their work to the oppression claim.   Furthermore, the court gave her the opportunity to do so in direct response to the defendants' detailed objections.   She chose not to use that opportunity and must live with the consequences of that decision.

FN6. The court recognizes that descriptions for time entries of Ms. Maturo are often more vague than are Attorney Bray's.   Nevertheless, the court believes a 25% adjustment is appropriate because the work was done following Attorney Bray's lead..  FN6. The court recognizes that descriptions for time entries of Ms. Maturo are often more vague than are Attorney Bray's.   Nevertheless, the court believes a 25% adjustment is appropriate because the work was done following Attorney Bray's lead.

FN7. Attorney Bray's affidavit in support of the plaintiff's motion that he be admitted pro hac vice merely says that he has been retained to represent the plaintiff in this matter..  FN7. Attorney Bray's affidavit in support of the plaintiff's motion that he be admitted pro hac vice merely says that he has been retained to represent the plaintiff in this matter.

FN8. Izard Nobel's bills include time entries from a number of individuals at rates ranging from $350 to $700 per hour For example, on November 9, 2011, Attorney Izard billed $525 for 45 minutes of work.   However, the plaintiff has made little or no attempt to explain the level of experience and expertise of some of the timekeepers.   For example, nowhere does the plaintiff identify “NAK” or “WTB.” Based on this lack of clarity, and for the reasons set forth above, the court concludes that the plaintiff may not recover anything more than what would be an appropriate blended rate of $275 to act in a support role to Attorney Bray..  FN8. Izard Nobel's bills include time entries from a number of individuals at rates ranging from $350 to $700 per hour For example, on November 9, 2011, Attorney Izard billed $525 for 45 minutes of work.   However, the plaintiff has made little or no attempt to explain the level of experience and expertise of some of the timekeepers.   For example, nowhere does the plaintiff identify “NAK” or “WTB.” Based on this lack of clarity, and for the reasons set forth above, the court concludes that the plaintiff may not recover anything more than what would be an appropriate blended rate of $275 to act in a support role to Attorney Bray.

Bright, William H., J.