D'Urso v. Lyons

• Decision Date: 29 August 2006
• Docket Number: No. 26860.,26860.
• Court: Connecticut Court of Appeals
• Parties: Sharyn N. D'URSO et al. v. Deborah LYONS, Executrix (Estate of Robert B. D'Urso), et al.

903 A.2d 697

97 Conn.App. 253

Sharyn N. D'URSO et al. v. Deborah LYONS, Executrix (Estate of Robert B. D'Urso), et al.

No. 26860.

Appellate Court of Connecticut.

Argued April 26, 2006.

Decided August 29, 2006.

Keith P. Sturges, with whom, on the brief, was Kenneth A. Votre, New Haven, for the appellant (named plaintiff).

David A. Shaw, pro se, the appellee (defendant David A. Shaw).

BISHOP, HARPER and DUPONT, Js.

HARPER, J.

The plaintiff Sharyn N. D'Urso¹ appeals from the trial court's judgment affirming the order of the Probate Court. On appeal, the plaintiff claims that the court improperly concluded that an attorney may have a valid charging lien on the proceeds of litigation when the representation was based on an hourly fee agreement. We affirm the judgment of the trial court.

The following facts and procedural history are undisputed. In 1995, the defendant Deborah Lyons,² acting in her capacity as trustee for Robert B. D'Urso, instituted an action against Robert D'Urso's sisters, Marion Amendola and Sharon D'Urso, to foreclose a mortgage on real property in New Haven. The mortgage secured a note in the amount of $40,000.

Attorney John J. Resnik represented Robert D'Urso until 1999, when a conflict of interest arose. At that time, the defendant David A. Shaw began representing Robert D'Urso pursuant to a written fee agreement that was executed by Lyons. The fee agreement provided for an hourly billing rate of $200 per hour. Payment was not contingent on the outcome of litigation, and the agreement was silent as to whether the fee would be paid from the proceeds of any recovery.

Shaw successfully resolved the litigation. Shortly thereafter, Robert D'Urso died. His estate solely consists of $40,000 that was recovered through the litigation handled by Shaw. Shaw subsequently presented a claim to the Probate Court for attorney's fees in the amount of $12,780. Those fees were wholly attributable to the litigation that Shaw had handled on behalf of Robert D'Urso prior to his death.

The Probate Court concluded that Shaw had a common-law charging lien against the proceeds of the litigation that he had handled for Robert D'Urso and ordered payment of Shaw's claim in full. The trial court affirmed the Probate Court's order. The plaintiff now appeals from the judgment of the trial court.

The plaintiff claims that the court improperly concluded that Shaw had a valid charging lien against the proceeds that were recovered as a result of his representation of Robert D'Urso. She argues that because the applicable fee agreement provided for an hourly rate rather than a contingency fee, there was no basis for a charging lien. In the absence of such a lien, the plaintiff argues that Shaw merely is a general creditor pursuant to General Statutes § 45a-365.³

We begin by setting forth our standard of review. Whether Shaw has a common-law charging lien against the proceeds of litigation is a question of law. "When ... the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Santana v. Hartford, 94 Conn.App. 445, 457, 894 A.2d 307 (2006).

Although not often litigated in the courts of Connecticut, the common-law charging lien has been recognized since 1836, when our Supreme Court noted that "[a]n attorney, as against his client, has a lien upon all papers in his possession, for his fees and services performed in his professional capacity, as well as upon judgments received by him." Gager v. Watson, 11 Conn. 168, 173 (1836). In Gager, the court acknowledged the existence of an attorney's retaining lien, which is a possessory lien on a client's papers and files that the attorney holds until his fee has been paid, as well as a charging lien, which is a lien placed on any money recovered or fund due the client at the conclusion of the lawsuit. Marsh, Day & Calhoun v. Solomon, 204 Conn. 639, 644, 529 A.2d 702 (1987). The Supreme Court further discussed the existence of charging liens in Cooke v. Thresher, 51 Conn. 105 (1883), in which the court stated: "If an attorney has rendered services and expended money in instituting and conducting a suit and the [client] orally agrees that he may retain so much of the avails thereof as will pay him for his services and expenses therein and for previous services in other matters, and he thereafter conducts the suit to a favorable conclusion, he has, as against such [client], an equitable lien upon the avails for the services and expenses in the suit, and for the previous services embraced in the agreement...." Id., at 107.

More recently, this court considered the propriety of an attorney enforcing an equitable lien against a judgment recovered on behalf of a client in Perlmutter v. Johnson, 6 Conn.App. 292, 505 A.2d 13, cert. denied, 200 Conn. 801, 509 A.2d 517 (1986), cert. denied, 479 U.S. 1035, 107 S.Ct. 886, 93 L.Ed.2d 839 (1987). In that case, the attorney represented a client in two matters for which he had not been paid completely. Id., at 293, 505 A.2d 13. Upon recovering a judgment in one of the matters, the attorney placed the funds in escrow and instituted an action against the client for payment of...