Freeman v. A Better Way Wholesale Autos, Inc.
| Decision Date | 03 May 2018 |
| Docket Number | HHDCV136045900S |
| Court | Connecticut Superior Court |
| Parties | Sharay Freeman v. A Better Way Wholesale Autos, Inc. |
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Huddleston, Sheila A., J.
The plaintiff, Sharay Freeman, seeks $65,791.24 in supplemental attorneys fees and costs pursuant to the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., incurred in defending an appeal by the defendant, A Better Way Wholesale Autos, Inc. The court previously found the defendant liable under CUTPA and common law fraud for misleading the plaintiff about the refundability of a $2500 deposit on a used car. (#132.) The plaintiff was awarded $2500 in compensatory damages, $7500 in punitive damages and, in a subsequent decision, $26,101.50 in attorneys fees. (#148.) The Appellate Court affirmed the judgment and the Supreme Court denied the defendant’s petition for certification. Freeman v. A Better Way Wholesale Autos Inc., 174 Conn.App. 649, 166 A.3d 857, cert. denied, 327 Conn. 927, 171 A.3d 60 (2017).
The defendant objects to the motion for supplemental attorneys fees. (#153.) The court heard argument on the motion on April 3, 2018, and held an evidentiary hearing on April 13, 2018 at which the plaintiff’s appellate attorney testified. For the reasons stated below, the court awards the plaintiff reasonable supplemental attorneys fees of $49,980.
The plaintiff’s request for appellate attorneys fees is governed by General Statutes § 42-110g(d), which provides in relevant part: " In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys fees based on the work reasonably performed by an attorney and not on the amount of recovery." As courts have often observed, " The public policy underlying CUTPA is to encourage litigants to act as private attorneys general and to engage in bringing actions that have as their basis unfair or deceptive trade practices ... In order to encourage attorneys to accept and litigate CUTPA cases, the legislature has provided for the award of attorneys fees and costs." (Citation omitted; internal quotation marks omitted.) Jacques All Trades Corp. v. Brown, 42 Conn.App. 124, 130-31, 679 A.2d 27 (1996), aff’d, 240 Conn. 654, 692 A.2d 809 (1997).
Although § 42-110g(d) does not expressly state that attorneys fees may be awarded for appellate work, Connecticut’s courts have consistently construed both contractual and statutory provisions for attorneys fees to encompass appellate attorneys fees unless the relevant language clearly indicates otherwise. See Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, 308 Conn. 312, 333-38, 63 A.3d 896 (2013) (); Gagne v. Vaccaro, 118 Conn.App. 367, 369-70, 984 A.2d 1084 (2009) (); Crowther v. Gerber Garment Technology, Inc., 8 Conn.App. 254, 271-72, 513 A.2d 144 (1986) (allowing appellate attorneys fees under General Statutes § 31-72 in civil action to collect wages).
Whether any attorneys fees should be awarded in a CUTPA case is a matter of discretion for the trial judge. Steiger v. J.S. Builders, Inc., 39 Conn.App. 32, 36, 663 A.2d 432 (1995). " A court has few duties of a more delicate nature than that of fixing counsel fees." (Internal quotation marks omitted.) Krack v. Action Motors Corp., 87 Conn.App. 687, 694, 867 A.2d 86, cert. denied, 273 Conn. 926, 871 A.2d 1031 (2005).
After the trial, this court determined that an award of attorneys fees was warranted in this case. The defendant now argues that it would be unduly punitive to award any additional fees for the appeal.
The court disagrees. CUTPA’s attorneys fee provision is intended to enable private parties to obtain counsel to enforce the statutory prohibition on unfair trade practices. That purpose could be thwarted if fees are not awarded for the successful defense of a CUTPA judgment on appeal. In consumer cases under CUTPA, there is often an imbalance of resources between the consumer plaintiff and the business defendant. If statutory fees were not available to such a plaintiff for an appeal, the defendant could exhaust the plaintiff’s resources and force the plaintiff to abandon or severely compromise a meritorious claim. The court will therefore award reasonable supplemental attorneys fees for the appeal and for this fee proceeding.
The plaintiff was represented at trial by Daniel S. Blinn and on appeal by Blinn and Richard F. Wareing. In an affidavit, Blinn attested that he does not handle appellate work on a regular basis and his two-lawyer office lacks the resources to handle all the appeals arising from judgments obtained against this defendant. Blinn therefore recommended that the plaintiff engage Wareing, an experienced appellate advocate with whom Blinn had previously worked, as co-counsel with primary responsibility for the appeal. Wareing agreed that he would be paid for his services only if the plaintiff prevailed on appeal and that his fees would be limited to the amount, if any, awarded by the court after the appeal.
Both Blinn and Wareing submitted affidavits and billing records in support of the motion for supplemental attorneys fees. At the initial hearing on the motion, the defendant did not object to the court’s consideration of Blinn’s affidavit and billing record but did object to Wareing’s affidavit as hearsay. The court subsequently held a hearing at which Wareing testified and was subjected to cross examination. His billing record was submitted as an exhibit at the hearing.
Although the defendant does not argue that the plaintiff unreasonably engaged appellate counsel, the defendant does challenge the amount requested. More specifically, it argues that (1) Wareing’s requested hourly rate is too high, (2) the amount requested is excessive and unreasonable in light of the actual damages of $10,000, (3) the plaintiff should not receive attorneys fees for its opposition to the petition for certification, and (4) some of the billing entries are questionable. Before deciding these specific claims, the court addresses the standard that applies to awards of attorneys fees under CUTPA.
" The initial estimate of a reasonable attorneys fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Carrillo v. Goldberg, 141 Conn.App. 299, 317, 61 A.3d 1164 (2013). " The courts may then adjust this lodestar calculation by other factors [outlined in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)]." Id. ; see Steiger v. J.S. Builders, Inc., supra, 39 Conn.App. 35-39 (adopting Johnson analysis). " The Johnson court set forth twelve factors for determining the reasonableness of an attorneys fee award, and they are: the time and labor required; the novelty and difficulty of the questions; the skill requisite to perform the legal services properly; the preclusion of other employment by the attorney due to acceptance of the case; the customary fee; whether the fee is fixed or contingent; time limitations imposed by the client or the circumstances; the amount involved and the results obtained; the experience, reputation, and ability of the attorneys; the ‘undesirability’ of the case; the nature and length of the professional relationship with the client; and awards in similar cases." Laudano v. New Haven, 58 Conn.App. 819, 823 n.9, 755 A.2d 907 (2000). Although courts often describe the Johnson/Steiger factors as the basis for an " adjustment" of the lodestar, as a practical matter, most of these factors " usually are subsumed within the initial calculation of hours reasonably expended, at a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 434 n.9, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).
In applying the Johnson/Steiger factors, the court should bear in mind the public policy underlying the statute that provides for the fee award at issue. See Costanzo v. Mulshine, 94 Conn.App. 655, 664-65, 893 A.2d 905, cert. denied, 279 Conn. 911, 902 A.2d 1070 (2006). A trial court abuses its discretion by " seizing from the full panoply of relevant factors merely one factor to the exclusion and disregard of others." Rodriguez v. Ancona, 88 Conn.App. 193, 203, 868 A.2d 807 (2005).
Turning to the task of determining reasonable supplemental fees in this case, the court considers the evidence of Blinn’s affidavit and billing records and Wareing’s testimony and billing records. The court also takes judicial notice of the appellate pleadings.[1] This includes motions, briefs, appendices, and the petition for certification and opposition thereto, which this court has fully reviewed to determine the reasonableness of the time expended in discrete tasks. The court also considers its own knowledge of appellate practice and procedure and fees customarily charged in Connecticut.
The first step in determining reasonable attorneys fees is deciding upon a reasonable hourly rate for the lawyers involved. Blinn requests an hourly rate of $375, the rate the court previously approved for his...
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