Achoa v. Achoa
| Decision Date | 06 November 2018 |
| Docket Number | FSTFA165016019S |
| Court | Connecticut Superior Court |
| Parties | Charles Achoa, Jr. v. Valeria S. Achoa |
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Heller, Donna Nelson, J.
On September 30, 2016, the plaintiff Charles Achoa, Jr. commenced this action, returnable October 18, 2016, to dissolve his marriage to the defendant Valeria S. Achoa. The plaintiff was represented by Victor J. Covallo, Esq. (Attorney Covallo), from February 1, 2017 until January 25 2018, when Kevin F. Collins, Esq. (Attorney Collins) appeared behalf of the plaintiff. Attorney Collins remains counsel of record for the plaintiff.
Before the court is the plaintiff’s motion for order, pendente lite (#258.00), filed on March 29, 2018, in which the plaintiff seeks an order directing Attorney Covallo to release his file in this action to Attorney Collins. The plaintiff and Attorney Covallo, both of whom were represented by counsel appeared for a hearing on the plaintiff’s motion for order pendente lite, on September 7, 2018. The court heard testimony from the plaintiff and Attorney Covallo, reviewed the exhibits that were admitted into evidence, considered the arguments of counsel, and took judicial notice of the court file in this matter and in the civil action styled, Law Offices of Victor J. Cavallo, LLC v. Charles Achoa, Superior Court, judicial district of Stamford/Norwalk, Docket No. FST-CV-18-6037627-S (the collection action). The court reserved decision at the conclusion of the hearing.
The plaintiff signed an engagement letter and retainer agreement with Attorney Covallo on or about January 27, 2017. The plaintiff paid an initial retainer of $25,000. From December 1, 2016 to February 8, 2018, the plaintiff incurred attorneys fees and expenses in the total amount of $218,295.61, according to the schedule of invoices admitted into evidence during the September 7, 2018 hearing. The plaintiff paid Attorney Covallo $102,300, leaving a balance due of $115,995.61.
The plaintiff testified that Attorney Covallo advised him that he would have to retain new counsel for the dissolution trial following a court appearance in January 2018. The plaintiff said that Attorney Covallo told him that he suffered from atrial fibrillation and he was dizzy after a morning in court. According to Attorney Covallo, he left it to the plaintiff to decide whether he wanted a new attorney.
The plaintiff retained Attorney Collins to represent him in lieu of Attorney Covallo. Attorney Collins filed an appearance on January 25, 2018 and moved for a continuance of the dissolution trial, which was then scheduled to begin on February 7, 2018. The motion for continuance was granted (Colin, J.). The trial was continued to May 22, 2018. The court continued the May trial dates and referred this action to the Regional Family Trial Docket, where the dissolution trial is scheduled to begin before the Hon. Leo V. Diana on November 26, 2018.
Attorney Collins requested a copy of the plaintiff’s file from Attorney Covallo. Attorney Covallo made the file available for inspection, but he asserted a retaining lien and declined to provide a copy of the entire file to Attorney Collins. To date, Attorney Covallo has refused to release the plaintiff’s file, although he provided some material from the file to Attorney Collins.
On July 23, 2018, Attorney Covallo commenced the collection action, returnable August 24, 2018, against the plaintiff to recover the unpaid legal fees and expenses. The collection action remains pending.
Connecticut recognizes a common-law, self-executing attorney’s retaining lien. An attorney has a retaining lien in a client’s papers and files until his or her fees have been paid. Marsh Day & Calhoun v. Solomon, 204 Conn. 639, 644-45, 529 A.2d 702 (1987). "A retaining lien is a passive lien and the attorney is unable to enforce it at law or in equity." Id. at 643. When an attorney abandons the passivity of a retaining lien and files suit to collect unpaid legal fees, however, the continuing validity and efficacy of the attorney’s retaining lien is called into question. Although this court is not aware of any Connecticut appellate authority directly on point, at least one Connecticut trial court and appellate courts in other jurisdictions have held that when an attorney sues a client for unpaid fees, the client is entitled to the production of his files in discovery, notwithstanding the attorney’s pre-existing retaining...
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