David M. Somers & Assoc., P.C. v. Busch, No. CV 03 0822125S (CT 4/10/2006)

• Decision Date: 10 April 2006
• Docket Number: No. CV 03 0822125S,CV 03 0822125S
• Citation: David M. Somers & Assoc., P.C. v. Busch, No. CV 03 0822125S (CT 4/10/2006), No. CV 03 0822125S (Conn. Apr 10, 2006)
• Court: Connecticut Supreme Court
• Parties: David M. Somers & Associates, P.C. v. Lori C. Busch Opinion No.: 93166

Page 1

Unpublished Opinion

David M. Somers & Associates, P.C. v.Lori C. Busch Opinion No.: 93166

No. CV 03 0822125S

Connecticut Superior Court

Judicial District of Hartford at Hartford

April 10, 2006

MEMORANDUM OF DECISION

MICHAEL R. SHELDON, JUDGE.

In this case, plaintiffDavid M. Somers & Associates, P.C., an Avon, Connecticut law firm, has sued defendantLori C. Busch, its former client in a marital dissolution action, for breach of contract based upon her alleged failure and refusal to pay it for legal services assertedly rendered to her under a written retainer agreement ("Retainer Agreement") dated September 10, 1998.In its one-count Complaint dated December 19, 2002, the plaintiff claims that under the terms of the Retainer Agreement, which was attached to the Complaint as Exhibit A, the defendant owes it an outstanding balance of $13,124.62 for services rendered to her through July 2, 1999, which sum she has failed and refused to pay it despite demand therefor.As relief for the defendant's alleged non-payment and resulting breach of contract, the plaintiff seeks to recover not only the entire balance allegedly due and owing to it as aforesaid, but interest on that balance at the rate of 12% per annum plus attorneys fees and costs in connection with this action, as assertedly provided in the Retainer Agreement.Id., p. 2.

The defendant has answered the plaintiff's complaint by admitting that she retained the plaintiff to represent her in connection with her dissolution action, that the plaintiff represented her in that action under the subject Retainer Agreement, and that she has refused the plaintiff's demand for payment under that Agreement of the sum of $13,124.62.Answer, Special Defense and Counterclaim (3/10/03): Answer, ¶¶1-2, 5.She has denied, however, that the latter sum due and owing to the plaintiff for services rendered to her under the Retainer Agreement through July 2, 1999;id.,¶5j; and has interposed two separate special defenses to the plaintiff's claim.Id.,Special Defenses, pp. 2-3.As her First Special Defense, the defendant claims as follows that the parties' Retainer Agreement was void ab initio:

1.The plaintiff was disbarred from the practice of law and failed to inform the defendant up until the last day he performed any services for her.Plaintiff knew or should have known that he would most likely be unable to represent the defendant in her divorce up to the conclusion of the matter.Based upon this knowledge and plaintiff's failure to inform defendant of his circumstances and the possibility of losing his license, defendant was denied the required full and fair disclosure when executing the retainer agreement, or at a later date during his representation of her.This omission by the plaintiff is contrary to the Rules of Professional Conduct as follows:

(a)Rule 1.3 Diligence: The plaintiff failed to act with proper diligence in representing the defendant in that, had he informed her of his pending disbarment, she would have been properly able to evaluate whether or not she wished him to continue to represent her and bill her for further time spent on the file;

(b)Rule 1.4b Communication: The plaintiff failed to communicate the fact to the defendant that he was going to be disbarred and that there was pending action for disbarment against him, the result of which was that the defendant was unable to make an intelligent and reasonable decision about whether or not to let the plaintiff continue to represent her;

(c)Rule 1.7 Conflict of Interest: General Rule-The fact that the plaintiff was going to be disbarred created an inherent conflict in that it was in his best interest to bill as much as possible in defendant's matter and to file as many frivolous motions in court as many times as possible prior to his disbarment;

(d)Rule 7.1 Communications Concerning Lawyer's Services: The plaintiff communicated a false and misleading statement in that he created an unjustified expectation about the results he could achieve since he knew or should have known that he would be disbarred prior to the conclusion of defendant's divorce action.

Based upon the foregoing and based upon equitable principles, the agreement is void ab initio.

Id.,Special Defenses, pp. 2-3(Emphasis in original).

As her Second Special Defense, the defendant claims that:

The plaintiff unnecessarily billed excessive hours, filed frivolous motions, expended unnecessary time in court on said motions, and made unreasonable demands in order to maximize his billing in the file.Based on the foregoing, the outstanding debt claimed is unsubstantiated.

Id., pp. 3-4.The plaintiff has denied both of the defendant's Special Defenses in their entirety.Reply to Special Defenses(3/17/03), p. 1.

As part of the same pleading in which she filed her Answer and Special Defenses, the defendant brought a Counterclaim against the plaintiff for alleged violation of the Connecticut Unfair Trade Practices Act, General Statutes §42-110a et seq.The Counterclaim was based upon allegations that: at the time of signing the Retainer Agreement, or at some time subsequent thereto, the plaintiff learned that there was a pending action for the disbarment of her attorney, David Somers, but failed to advise her thereof;Answer, Special Defense and Counterclaim (3/10/03): Counterclaim, ¶¶1-2; said failure to notify the defendant of the pendency of an action for the disbarment of Mr. Somers was a material misrepresentation and/or omission designed to induce the defendant to execute the Retainer Agreement and/or to keep the plaintiff as her counsel in her dissolution action;id., ¶3;the plaintiff, so retained, filed frivolous motions and billed excessive hours in order to maximize his billing in the dissolution action without regard to the defendant's interests or financial condition;id, ¶4; and said misrepresentations and/or omissions and actions were unfair and deceptive, and thus in violation of CUTPA.Id., p. 5.As relief on her Counterclaim, the defendant seeks compensatory damages, costs and reasonable attorneys fees, and punitive damages.

The plaintiff, as counterclaim defendant, has answered the defendant's Counterclaim by admitting that either at the time it signed the Retainer Agreement to represent the defendant in her dissolution action, or at some time after the execution of that Agreement, it learned that there was a pending action for the disbarment of Mr. Somers.Answer to Counterclaim(3/17/03), ¶¶1, 3.It has denied, however, all other allegations of wrongdoing made against it in the Counterclaim.Id., ¶2.

With the pleadings closed as aforesaid, this case went to trial before the Court on April 7 and April 13, 2004.Thereafter, following a lengthy delay for the preparation of trial transcripts, it was briefed by counsel, who presented final arguments on May 13, 2005.

Upon later researching the issues presented by the parties' pleadings and otherwise raised by the evidence introduced at trial, the Court determined that the parties should be required to submit supplemental briefs to address several issues that were potentially dispositive of this case.Accordingly, the Court issued a Supplemental Briefing Order dated September 16, 2005,¹ to which the parties duly responded by filing supplemental briefs on November 28 and December 9, 2005.

Based upon the evidence presented at trial, including several documentary exhibits and the testimony of three witnesses—Ms. Busch, Mr. Somers, and Attorney Susan Smith, who represented Ms. Busch's ex-husband in her dissolution action—and the post-trial arguments and briefs of counsel, the Court hereby makes the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

On September 10, 1998, defendantLori C. Busch met with David M. Somers, a licensed Connecticut attorney who was then the President of and the sole lawyer employed by plaintiffDavid M. Somers & Associates, P.C., an Avon, Connecticut law firm, for an initial consultation about obtaining a divorce from her husband, Carl Busch.Ms. Busch, a non-lawyer whose only prior dealings with lawyers had involved a house closing and the preparation of a will, was induced to contact the plaintiff, as opposed to other law firms, by its advertisement of a free initial consultation.Based upon discussions with friends who had previously been divorced, Ms. Busch expected that the total cost for legal services to obtain a divorce would range from $3,000 to $5,000.

Before contacting the plaintiff, Ms. Busch and her husband had discussed her plan to divorce him and reached agreement on the essential terms of a dissolution agreement.Thus, as she informed Mr. Somers, she and her husband had already agreed, inter alia: that they would share joint custody of their three minor children, ages 13, 12 and 11; that she would have physical custody of the children, but he would have reasonable, liberal and flexible rights of visitation with them; and that they would equally divide their marital assets, including all savings in his deferred compensation plan.As she further informed him, the only issues that still needed to be resolved between herself and her husband were the amounts of his alimony and child support payments.Mrs. Busch was well aware that her husband had had an extramarital affair with another woman.Even so, her overriding desire, which she communicated expressly to Mr. Somers and he specifically noted, was to obtain a divorce as quickly and as amicably as possible.

At the end of the initial consultation, which lasted approximately 1 3/4 hours, Mr. Somers surprised Ms. Busch by informing her for the first time that only the first fifteen minutes of her initial consultation had been free, and thus that she already owed him a fee for 1 1/2 hours of his time.This limitation upon her right to a free initial consultation had not been mentioned in the advertisement that first drew her to the plaintiff's...