Bershtein, Bershtein and Bershtein, P.C. v. Nemeth

Decision Date25 February 1992
Docket NumberNo. 14348,14348
Citation603 A.2d 389,221 Conn. 236
CourtConnecticut Supreme Court
PartiesBERSHTEIN, BERSHTEIN AND BERSHTEIN, P.C. v. Deborah NEMETH.

Mark Rademacher, Hamden, for appellant (plaintiff).

Deborah L. Nemeth, pro se.

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and COVELLO, JJ.

COVELLO, Associate Justice.

This is an action for breach of contract that involves a successor attorney's alleged agreement to pay the reasonable value of prior counsel's legal services. The issues presented on appeal are: (1) whether there was any evidence of an express agreement by successor counsel to pay the reasonable value of prior counsel's services; and (2) whether successor counsel's acceptance of a case creates an implied in law contract to pay the reasonable value of prior counsel's services. We agree with the trial court that there was no evidence of an express agreement to pay for prior counsel's services and we conclude that no implied in law contract existed. We, therefore, affirm the judgment of the trial court.

The following facts are undisputed. On September 30, 1985, Anthony Falcigno was injured in an automobile accident. Shortly thereafter, Falcigno engaged the plaintiffs law firm (law firm) in connection with his negligence claim for damages and personal injuries arising out of the accident. The law firm agreed to represent Falcigno on a contingent fee basis to the end that the firm would receive as compensation one third of any recovery obtained. In early April, 1987, Falcigno terminated his relationship with the law firm and retained the defendant, attorney Deborah Nemeth, to pursue his negligence claim. The defendant and Falcigno agreed to a similar contingent fee arrangement whereby the defendant would receive as her compensation one third of any recovery.

Later that month, the defendant requested that the law firm give her a copy of Falcigno's file and an accounting of the work performed to date so that she might propose an agreement as to how the law firm would be compensated for the time spent on the case. The law firm never sent the defendant either the file or the accounting. There was never any written agreement between the parties as to how the law firm would be compensated for the services, and oral discussions on the subject broke down after the law firm failed to furnish the defendant with the requested copy of the file and the accounting of the services. Several months later, the defendant settled the case and disbursed the net proceeds to Falcigno. 1 In November, 1987, after the defendant had informed the law firm of the settlement, the firm sent her an accounting of the time spent on the file totaling 117.5 hours, together with a bill to her in the amount of $14,564.90. The defendant refused to pay.

In January, 1990, the law firm commenced this breach of contract action alleging in the complaint that the defendant "agreed ... to pay the plaintiff the reasonable value of [the] legal services performed on behalf of Mr. Falcigno." The defendant denied that this was the case. The matter proceeded to trial. At the close of the law firm's case, the defendant moved for a dismissal pursuant to Practice Book § 302 2 for failure to make out a prima facie case. The trial court granted the motion and rendered judgment for the defendant concluding that there was no evidence "of any agreement of any kind that was reached" between the parties. 3 The law firm appealed to the Appellate Court and we thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

I

The law firm first claims that, contrary to the trial court's finding, there was evidence that the defendant expressly agreed to compensate the firm for the reasonable value of the legal services performed on behalf of Falcigno. The law firm argues that "[t]he evidence offered by the plaintiff [was] to be taken as true and interpreted in the light most favorable to the firm and every reasonable inference [was] to be drawn in [its] favor." Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 548, 447 A.2d 406 (1982). While we agree that this is the standard to be applied in considering a motion to dismiss pursuant to Practice Book § 302, we disagree with the law firm's contention that there was evidence of an express agreement to pay for the services at issue. The law firm is unable to point to any evidence in the record supporting the contention that an express contract existed and our examination of the record indicates that none exists. 4 When, as here, the trial court's conclusion that there was "no evidence ... of any agreement of any kind" between the parties is borne out by the record, it will not be disturbed on appeal. Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

II

The law firm next claims that even if there was no evidence of an express undertaking by the defendant to pay the reasonable value of the services, the circumstances present give rise to an implied in law contract to do so. The law firm argues that the Connecticut Bar Association Committee on Professional Ethics, Formal Opinion Number 31 (1978), 5 requires that a successor attorney provide prior counsel with: (1) an agreement establishing the method of division of the ultimate fee; or (2) a letter stating that he or she will hold the amount of the contingency fee until arrangements for its disposition between the attorneys are made either by agreement, arbitration or court order. Since the defendant did neither of these things, the law firm argues that an implied in law contract has arisen to pay the reasonable value of their services. We do not agree.

" 'A true implied [in fact] contract can only exist where there is no express one. It is one which is inferred from the conduct of the parties though not expressed in words. Such a contract arises where a plaintiff, without being requested to do so, renders services under circumstances indicating that he expects to be paid therefor, and the defendant, knowing such circumstances, avails himself of the benefit of those services. In such a case, the law implies from the circumstances, a promise by the defendant to pay the plaintiff what those services are reasonably worth.' Collins v. Lewis, 111 Conn. 299, 304, 149 A. 668 [1930]; Gustave Fischer Co. v. Morrison, 137 Conn. 399, 403, 78 A.2d 242 [1951]; Automobile Ins. Co. v. Model Family Laundries, Inc., 133 Conn. 433, 439, 52 A.2d 137 [1947]." Freda v. Smith, 142 Conn. 126, 134, 111 A.2d 679 (1955). Both express contracts and contracts implied in fact are based on consent. 17A Am.Jur.2d, Contracts § 13, n. 13.

"In distinction to an implied [in fact] contract, a quasi [or implied in law] 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." (Citations omitted; emphasis added.) Brighenti v. New Britain Shirt Corporation, 167 Conn. 403, 407, 356 A.2d 181 (1974). "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 this standard." Cecio Bros., Inc. v. Greenwich, 156 Conn. 561, 564-65, 244 A.2d 404 (1968).

In examining the circumstances and conduct of the parties in the present instance, we perceive from the record that the defendant requested, in addition to the file, an accounting of the law firm's time spent on the case to date in order that an agreement pursuant to Opinion 31 could be formulated. The law firm refused to comply with either request. The defendant, without the benefit of the file, had to proceed with the case based upon her own initiative in what was obviously a duplication of the previously rendered legal services. It was only after she notified the law firm of the settlement that the firm sent her the previously requested accounting along with a bill for $14,564.90. "The plaintiff seeks equity only for himself, but this he may not do. One who seeks equity must also do equity and expect that equity will be done for all." LaCroix v. LaCroix, 189 Conn. 685, 689, 457 A.2d 1076 (1983). Where, as here, there was neither delivery of the requested accounting nor the case file, thereby forcing a duplication of legal effort in order to dispose of the litigant's case, we are not inclined to say that equitable principles...

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1 books & journal articles
  • Revision to Formal Opinion No. 31
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 67, 1992
    • Invalid date
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