Alan E. Silver, P.C. v. Jacobs

Decision Date29 October 1996
Docket NumberNo. 14614,14614
Citation43 Conn.App. 184,682 A.2d 551
CourtConnecticut Court of Appeals
PartiesAlan E. SILVER, P.C., v. Howard A. JACOBS et al.

Bruce S. Beck, Manchester, with whom, on the brief, was Marc P. Mercier, for appellant (plaintiff).

Steven D. Ecker, New Haven, for appellees (defendants).

Before LAVERY, LANDAU and SCHALLER, JJ.

SCHALLER, Judge.

The plaintiff 1 appeals from the judgment of the trial court granting the defendants' 2 motion for summary judgment. The plaintiff brought a six count complaint to recover an attorney's fee from the defendant on the basis of an alleged fee protection agreement. He claims that the trial court improperly concluded that he was not entitled to recover as to (1) the first count sounding in breach of contract, (2) the second count in quantum meruit for services performed, (3) the third count on a theory of unjust enrichment, (4) the fourth count on a theory of tortious breach of contract, (5) the fifth count on a theory of misrepresentation, and (6) the sixth count on a Connecticut Unfair Trade Practices Act (CUTPA) 3 claim. We affirm the judgment of the trial court.

The following facts are undisputed. In June, 1988, Allen Chatt and Gail Chatt retained the plaintiff to represent them concerning their claims for damages arising out of an automobile accident. The Chatts did not enter into a written fee agreement with the plaintiff. Although the plaintiff and the Chatts both claimed that an oral agreement existed, they differed as to its terms. The plaintiff worked on the Chatts' file for approximately thirteen months. In July, 1989, the Chatts discharged the plaintiff and retained the defendant and his law firm to represent them.

The defendant and the Chatts entered into a written retainer agreement on July 10, 1989. When the defendant requested the Chatts' file, 4 the plaintiff agreed to surrender it as soon as the defendant complied with Formal Opinion 31 of the Connecticut Bar Association. 5 5 After the defendant responded by letter stating that "[u]pon the conclusion of the Chatt matter, I will hold in my client's funds account the amount required under your contingency arrangement until its disposition has been determined by agreement or by litigation," 6 the plaintiff turned over the Chatts' file. The defendant did not request a copy of a written fee agreement at that time. At the time of the file transfer, the plaintiff had not drafted pleadings or filed a complaint, and had conducted minimal research on the case. The defendant reimbursed the plaintiff at that time for his out-of-pocket costs, $29.20.

In December, 1990, the defendant settled the Chatt case after nine days of trial, resulting in attorney's fees of $680,000. The formal settlement agreement was executed on January 8, 1991. On January 2, 1991, the plaintiff, who had learned about the settlement from a source other than the defendant, contacted the defendant to inquire about the fee. The defendant requested evidence of the contingency fee agreement between the plaintiff and the Chatts. When no evidence of a written agreement was produced, the defendant refused to pay the plaintiff any portion of the fee and refused to escrow any part of it.

The plaintiff then brought the present action seeking to recover a portion of the attorney's fee under theories of breach of contract, quantum meruit, unjust enrichment, tortious breach of contract, misrepresentation, and a violation of CUTPA. The defendant moved for summary judgment on all counts, and the plaintiff moved for summary judgment on the first three counts. The trial court granted summary judgment on all counts in favor of the defendant. This appeal followed.

" 'When reviewing a trial court's ruling on a motion for summary judgment, we must decide whether the trial court erred in determining that there was no "genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 384....' West Haven v. Hartford Ins. Co., 221 Conn. 149, 155, 602 A.2d 988 (1992)." (Internal quotation marks omitted.) CTB Realty Ventures XXII, Inc. v. Markoski, 33 Conn.App. 388, 391, 636 A.2d 379, cert. granted, 228 Conn. 929, 640 A.2d 115 (1994) (appeal withdrawn July 18, 1994). Because the plaintiff conceded at oral argument that no genuine issues of material fact exist in this case, "[w]e ... need to determine only whether, on the basis of the uncontroverted facts, the defendant [was] entitled to summary judgment as a matter of law." Id.; see Burns v. Board of Education, 228 Conn. 640, 643 n. 2, 638 A.2d 1 (1994).

I

The plaintiff claims that the trial court improperly held that he was not entitled to recover on his breach of contract claim. The trial court concluded that "[t]he defendants' promise to hold in the client's fund an amount required by the plaintiff's contingency arrangement was subject to the condition precedent of delivery of that agreement to the defendants." The court further concluded that "[t]he plaintiff's failure to provide the Chatts with a written contingency agreement, a violation of the provisions of [General Statutes] § 52-251c(a), cannot give rise to a right to performance from the defendants." Because we agree with the trial court that the plaintiff's violation of § 52-251c(a) precludes his recovery from the defendant, we find no merit in his claim. 7

There is no dispute that the plaintiff had an oral, rather than written, contingency agreement with the Chatts. The plaintiff challenges the trial court's determination that this bars his recovery from the defendant. The plaintiff argues that an oral contingency agreement between an attorney and a client is not invalid. The language of § 52-251c(a) 8 clearly requires that all contingency fee agreements be reduced to writing. Beizer v. Goepfert, 28 Conn.App. 693, 705, 613 A.2d 1336, cert. denied, 224 Conn. 901, 615 A.2d 1044, cert. denied, 507 U.S. 973, 113 S.Ct. 1416, 122 L.Ed.2d 786 (1992). The use of the word "shall" in the statute connotes that the performance of the requirement is mandatory rather than permissive. Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 240, 558 A.2d 986 (1989); Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986).

It is well established that contracts that violate public policy are unenforceable. Konover Development Corp. v. Zeller, 228 Conn. 206, 231, 635 A.2d 798 (1994), citing Smith v. Crockett Co., 85 Conn. 282, 287, 82 A. 569 (1912); McCarthy v. Santangelo, 137 Conn. 410, 412, 78 A.2d 240 (1951). Section 52-251c "was intended to regulate the attorney-client relationship in order to protect plaintiffs from excessive legal fees." Berry v. Loiseau, 223 Conn. 786, 830 n. 22, 614 A.2d 414 (1992). Where a law is passed for the protection of the public, we will not undermine the remedial purposes of the statute by enforcing an oral contract in contravention of the law. 9 See Caulkins v. Petrillo, supra, 200 Conn. at 720, 513 A.2d 43 (refusing to enforce oral contract by home improvement contractor in violation of General Statutes § 20-429); DiBiase v. Garnsey, 103 Conn. 21, 28, 130 A. 81 (1925) (refusing to enforce oral contract for auto repairs in excess of $50 in violation of § 63 of chapter 400 of the Public Acts of 1921).

The plaintiff argues, as an alternative, that the requirement that a contingency agreement be in writing serves only to protect a client and that the agreement that he seeks to enforce is independent of the oral contingency agreement he had with the Chatts. In other words, the plaintiff asserts that § 52-251c(a) does not protect the defendant from liability on their separate agreement. The defendant promised the plaintiff that: "Upon the conclusion of the Chatt matter, I will hold in my client's funds account the amount required under your contingency arrangement...." We agree that the plaintiff's agreement with the defendant is a separate transaction from the plaintiff's agreement with the Chatts. The unenforceability of the oral contingency agreement, however, requires the conclusion that the defendant was not obligated to hold any funds for the plaintiff.

The agreement provides that the defendant was required to hold in his clients' funds account only the amount that the Chatts were legally obligated to pay the plaintiff pursuant to the oral contingency agreement. Because the defendant was required to hold only those amounts that the Chatts were obligated to pay the plaintiff, and the Chatts were under no legal obligation to pay the plaintiff, the defendant was never contractually bound to hold or pay any amount to the plaintiff. See West Haven v. Hartford Ins. Co., supra, 221 Conn. at 164, 602 A.2d 988 (because insured was under no legal obligation to pay punitive damages award, insurer never contractually bound to pay that sum on behalf of insured).

II

The plaintiff next claims that the trial court improperly determined that he did not have a right to recover from the defendant in quantum meruit and under the doctrine of unjust enrichment. He argues that it is well established that an attorney may recover the value of his legal services even absent an express agreement. 10 We disagree that the plaintiff may recover under the circumstances of this case.

"[A] quasi ... contract is not a contract, but an obligation which the law creates out of the circumstances present, even though a party did not assume the obligation, and may not have intended but in fact actually dissented from it.... It is based on equitable principles to operate whenever justice requires compensation to be made.... With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed to examine the circumstances and the conduct of the parties and apply...

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10 cases
  • Gagne v. Vaccaro
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    ...put into writing a contingency fee agreement pursuant to General Statutes § 52-251c. The court overruled in part Alan E. Silver, P.C. v. Jacobs, 43 Conn. App. 184, 682 A.2d 551, cert. denied, 239 Conn. 938, 684 A.2d 708 (1996), and held that an attorney who neglects to follow the dictates o......
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    ...respect to contract that does not comply with statute of frauds and effects of unenforceability) with Alan E. Silver, P.C. v. Jacobs, 43 Conn. App. 184, 188-91, 193-94, 682 A.2d 551 (concluding that CUTPA claim could not be stated for lack of ascertainable loss element of such claim when ba......
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    ...fee agreement when he undertook to represent Osborne. This failure is fatal to the plaintiff's claims. See Alan E. Silver, P.C. v. Jacobs, 43 Conn.App. 184, 188-89, 682 A.2d 551, cert. denied, 239 Conn. 938, 684 A.2d 708 Our law is clear. When an attorney undertakes to represent a client in......
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