LLC v. James T. Costello (2014)

MEMORANDUM OF DECISION

FACTS

This action was initiated in the Small Claims session of the Superior Court.   The Plaintiff, Beck & Beck, LLC, acting through its principal, Kenneth A. Beck, instituted a small claims complaint against the Defendant, James T. Costello, seeking to recover for legal services allegedly rendered to the Defendant.

The small claims writ alleged that Beck & Beck was due the sum of $9,989.20.   The Plaintiff claimed an unpaid balance due of $1,350.00, plus a claim for one percent interest since January of 2011, as computed on a monthly basis.

Upon receipt of the small claims action, the Defendant, James T. Costello, sought to transfer the action to the regular docket of the Superior Court, pursuant to § 24–21 1 of the Connecticut Practice Book. An answer, special defense, and counterclaim, dated August 26, 2011, was filed, along with the motion to transfer.

In his special defense, the Defendant claims that the fees charged by Beck & Beck were excessive.   The four counts pled in the counterclaim were, breach of contract (Count One), breach of the covenant of good faith and fair dealing (Count Two), professional negligence (Count Three), and a claimed violation of the Connecticut Unfair Trade Practices Act (CUTPA), § 42–110g of the Connecticut General Statutes.

Following the transfer to the regular docket, the Plaintiff, Defendant on the Counterclaim, moved to strike the Counterclaims.   On November 28, 2011, the Court (Levin, J.), granted the motion to strike in its entirety.

An August 8, 2012 pleading attempted to re-plead the causes of action which Judge Levin had struck.

The Plaintiff moved to strike the counterclaims on February 4, 2013, a motion which was granted by the Court (Sommer, J.).

Although Kenneth A. Beck, in his individual capacity, was made a party to this action, as a Cross Claim Defendant, the granting of the motion to strike by Judge Sommer leaves only the claim for unpaid legal services, brought by Beck & Beck, LLC.

The Plaintiff has pursued this claim, which was tried to the Court, claiming breach of contract, costs, and attorneys fees, pursuant to § 52–251a 2 of the General Statutes.

HISTORY OF THE CASE

In June of 2010, the Defendant, James T. Costello, was the Plaintiff in a matter entitled Costello v. Lynwood Condominium et al.  (Docket # CV–09–40271345), which was pending in the Judicial District of Fairfield at Bridgeport.   He was initially represented by Attorney William Kupinse, of the firm of Goldstein and Peck.

On June 17, 2010, Costello retained the Plaintiff, Beck & Beck, LLC, to represent him, in his action against Lynwood Condominium.   He paid a three thousand dollar ($3,000) retainer fee (Ex. 1), and received a letter from Attorney Kenneth A. Beck dated June 18, 2010, confirming receipt of the retainer.   In his letter, Kenneth A. Beck stated that the billing rate would be three hundred dollars ($300) per hour (Ex. I).

Throughout the summer of 2010, the Plaintiff's billing records (Ex. 3) reflect no activity.   Beginning in September of 2010, after Beck & Beck entered its appearance on behalf of James T. Costello, the record (Ex. 3) reflects time spent preparing a motion to reinstate a receiver, preparation of an affidavit for James T. Costello's signature, and preparation for a motion for contempt, prior to a court hearing on October 25, 2010.

The matter of Costello v. Lynwood Condominium et al., concerned the operation of a condominium complex.   James T. Costello sought an accounting from the association, along with other relief.   In May of 2010, a court ordered receivership was terminated, by agreement of the parties.

After filing its appearance in September of 2010, the Plaintiff, Beck & Beck, LLC, sought to reinstate the receiver.   Motions for contempt were also filed.

On October 25, 2010, a hearing was held concerning the motion to reinstate the receiver.   The Court (Tyma, J.), denied the motion to reinstate the receiver.

The Plaintiff's billing records for that date claim:

10/25/10 Prepare and File Motion to Quash 10 Hrs.

Subpoena, Court Hearing Appearance

Following the hearing before Judge Tyma, which did not result in the outcome desired by the Defendant, James T. Costello, Beck & Beck, LLC dedicated minimal time to representing James T. Costello in his action.

There were no court appearances by Beck & Beck, LLC, after October 25, 2010.

No depositions were conducted by Beck & Beck, LLC, or noticed by any other party to the litigation.   No discovery requests were submitted at any time by Beck & Beck, LLC.

A review of the file reveals no pleadings after October of 2010, initiated by Beck & Beck, LLC.

Following the October 25, 2010 court appearance, the Plaintiff claims to have expended one and one-half hours on the Costello file, through November 8, 2010.   No work was performed after that date, and the Plaintiff was discharged by James T. Costello on January 3, 2011.   James T. Costello, thereafter, filed an appearance, in order to represent himself.

A judgment of dismissal was entered in the action brought against the condominium association in September of 2011, after this action was instituted in small claims court.

The Plaintiff's invoice dated December 8, 2010, listed $1,350 as the amount due from the Defendant, through November 8, 2010 (Ex. 3).   In May of 2011, however, the invoice contained an additional two hours at $300 per hour, prior to November 8, 2011 (Ex. 4).   The revised amount claimed to be due was $1,950.

The Defendant, James T. Costello, claims that the Plaintiff, Beck & Beck, LLC, has been fully compensated for all services rendered, and that no monies are due.

PLAINTIFF HAS PROVED THAT A BALANCE REMAINS UNPAID

On June 18, 2010, the Plaintiff acknowledged receipt of three thousand dollars ($3,000) from James T. Costello, as a retainer.   In the letter signed by Kenneth A. Beck (Ex. 1), Costello was informed:  “if it ever becomes necessary for us to enforce this Agreement, you agree to pay costs of collection, including reasonable attorneys fees and costs.”

Costello never agreed, in writing, to any payment of interest, costs or attorneys fees, either at the time he tendered his check in the amount of $3,000, or following the payment.

The Defendant claims that the fees charged were excessive.   He further questions the quality of the representation provided by Beck & Beck, LLC, while he was represented by the firm.

His questions concerning the quality of the services rendered, simply restate the claims raised by way of counterclaim, and are not part of this claim.   Therefore, the court will not address those issues in this action, which seeks payment of outstanding legal fees.

Costello's claim that the number of hours billed were excessive, however, is valid, to a limited degree.

It is found, that the charge of $300 per hour by “Beck & Beck, LLC, is not unreasonable, and no evidence was presented indicating that the hourly rate was not appropriate for the type of case brought by James T. Costello.   The Court therefore finds that the hourly rate does not violate Rule 1.5 of the Rules of Professional Conduct.

However, Costello rightly questions a billing of ten (10) hours on October 25, 2010, a figure which, in one day, and a single court appearance, consumed the entire retainer fee.

The Defendant's claim is given credence, in light of the billing on October 22, 2010, for “Prep Meeting W/Client.”  (Ex. 3)

Therefore, based upon the testimony at trial, and the Plaintiff's exhibits, it is found that a billing for eight (8) hours on October 25, 2010, or two thousand four hundred dollars ($2,400), for the entire day, may be justified by the Plaintiff.

Furthermore, the Court finds that Exhibit 3, not Exhibit 4, accurately reflects the services rendered to the Defendant, James T. Costello, through November 8, 2010.   The last billing is approximately three weeks following the appearance before Judge Tyma.

Therefore, it is found that the Plaintiff, Beck & Beck, LLC, should recover of the Defendant, James T. Costello, the sum of seven hundred fifty dollars ($750).   This recovery represents all of the amounts shown on Exhibit 3, less two hours billed on October 25, 2010.

Since the Defendant did not agree, orally or in writing, to the payment of interest, Beck & Beck, LLC has not proven that it should recover interest on any monies found to be due.   The Court further declines to award interest, pursuant to § 37–3a 3 of the General Statutes.

ATTORNEYS FEES NOT AWARDED

The Plaintiff, Beck & Beck, LLC, asks the court to award eleven thousand, three hundred twenty-five dollars ($11,325) in attorneys fees (Ex. 7), pursuant to § 52–251a of the General Statutes.

The rule permitting a Defendant, in this case James T. Costello, to transfer a case instituted in small claims court to the regular docket, enables a defendant to avoid the informal procedures followed in the small claims session, by opting for the more structured setting of the regular court docket.   The ability to transfer a case protects the right to a trial by jury, and the right of appeal, both of which are important rights.  Cannovo Enterprises, Inc. v. Burns, 194 Conn. 43, 51 (1984).

Beck & Beck, LLC's claim to recover attorneys fees must fail.

Connecticut follows the so-called “American Rule,” under which a successful litigant is not entitled to an award of attorneys fees.  Rizzo Pool Company v. DelGrasso, 240 Conn. 58, 72 (1997);  Gionfriddo v. Avis Rent A Car Systems, Inc., 192 Conn. 280, 297 (1984).  Section 52–251a represents an exception to that general rule.

The Plaintiff correctly cites the rule in this jurisdiction, that a pro se (self-represented) litigant may not recover attorneys fees, even if the litigant is successful on a portion of the claim.  Dunn v. Peter L. Lepson, PC, 70 Conn.App. 366, 372 (2003);  Jones v. Ippoliti, 52 Conn.App. 199, 212 (1999).   It is therefore compelled to concede, that attorneys fees cannot be awarded for work performed by Beck & Beck, LLC.

The Plaintiff maintains, however, notwithstanding this rule, that attorneys fees may be awarded for work performed by Attorney Lauren R. Masotta, a member of the Connecticut Bar, and an independent contractor engaged by Beck & Beck, LLC to assist with this matter.

This claim is not persuasive.

No attorney may appear in court, or be heard on behalf of a party, until that attorney has entered an appearance in the case.⁴  Attorney Masotta, who attended the trial, did not enter a personal appearance in this matter.   Therefore, it cannot be said that she represented Beck & Beck, LLC in this matter.  Jones v. Ippoliti, supra, 211–12.

Beck & Beck, LLC proceeded at all times in this matter as a self-represented party.   Therefore, it cannot recover any attorneys fees, even though it prevailed in its claim to the extent of seven hundred fifty ($750) dollars.

It must further be noted that the language of § 52–251a is permissive.   The use of the word “may” rather than “shall” represents a purposeful decision by the General Assembly.   Attorneys fees are not recoverable in every situation in which a plaintiff prevails, following a transfer to the regular docket of the Superior Court.

In this case, even if the prohibition concerning the recovery of attorneys fees by self-represented parties did not apply, the court would not be inclined to award any fees.

CONCLUSION

Judgment may enter in favor of the Plaintiff, Beck & Beck, LLC, in the amount of seven hundred fifty dollars ($750).

Costs are awarded to the Plaintiff.

RADCLIFFE, J.

FOOTNOTES

FN1. Section 24–21, Connecticut Practice Book—”(a) A cause duly entered on the small claims docket ․ shall be transferred to the regular docket of the Superior Court ․ “(2) The motion to transfer must be accompanied by (A) a counterclaim in an amount greater than the Jurisdiction of the small claims court ․”.  FN1. Section 24–21, Connecticut Practice Book—”(a) A cause duly entered on the small claims docket ․ shall be transferred to the regular docket of the Superior Court ․ “(2) The motion to transfer must be accompanied by (A) a counterclaim in an amount greater than the Jurisdiction of the small claims court ․”

FN2. Section 52–251a, C.G.S.—”Whenever the plaintiff prevails in a small claims matter which was transferred to the regular docket of the superior court on the motion of the defendant, the court may allow to the plaintiff his costs, together with reasonable attorneys fees to be taxed by the court.”.  FN2. Section 52–251a, C.G.S.—”Whenever the plaintiff prevails in a small claims matter which was transferred to the regular docket of the superior court on the motion of the defendant, the court may allow to the plaintiff his costs, together with reasonable attorneys fees to be taxed by the court.”

FN3. Section 37–3a, C.G.S. “․ interest at the rate of ten percent a year, and no more, may be recovered and allowed in civil actions ․ as damages for the detention of money after It becomes due and payable.”.  FN3. Section 37–3a, C.G.S. “․ interest at the rate of ten percent a year, and no more, may be recovered and allowed in civil actions ․ as damages for the detention of money after It becomes due and payable.”

FN4. Section 3–7a, Connecticut Practice Book..  FN4. Section 3–7a, Connecticut Practice Book.

Radcliffe, Dale W., J.