Freeman v. A Better Way Wholesale Autos, Inc

• Decision Date: 02 July 2019
• Docket Number: AC 41675
• Citation: 191 Conn.App. 110,213 A.3d 542 (Mem)
• Court: Connecticut Court of Appeals
• Parties: Sharay FREEMAN v. A BETTER WAY WHOLESALE AUTOS, INC.

191 Conn.App. 110

213 A.3d 542 (Mem)

Sharay FREEMAN

v.A BETTER WAY WHOLESALE AUTOS, INC.

AC 41675

Appellate Court of Connecticut.

Argued May 29, 2019

Officially released July 2, 2019

Kenneth A. Votre, New Haven, for the appellant (defendant).

Richard F. Wareing, Hartford, with whom was Daniel S. Blinn, Rocky Hill, for the appellee (plaintiff).

Keller, Bright and Devlin, Js.

PER CURIAM.

The defendant, A Better Way Wholesale Autos, Inc., appeals from the judgment of the trial court awarding supplemental attorney's fees to the plaintiff, Sharay Freeman. In the underlying action, the plaintiff brought a two count complaint in which she claimed a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and fraudulent misrepresentation related to the defendant's failure to refund the plaintiff's $2500 deposit for an attempted sale of a used vehicle. The trial court found in favor of the plaintiff on both counts, and this court affirmed the judgment on appeal. See Freeman v. A Better Way Wholesale Autos, Inc. , 174 Conn. App. 649, 651, 166 A.3d 857, cert. denied, 327 Conn. 927, 171 A.3d 60 (2017). On August 17, 2017, the plaintiff filed with the trial court a motion for supplemental attorney's fees. After an evidentiary hearing, the trial court subsequently granted in part the plaintiff's motion for supplemental attorney's fees and awarded her $49,980.

In the present appeal, the defendant claims that the court (1) erred in awarding the plaintiff supplemental attorney's fees, and (2) abused its discretion in awarding attorney's fees in the amount of $49,980. We disagree.

Our examination of the record on appeal and the briefs and arguments of the parties persuades us that the judgment of the trial court should be affirmed. Because the trial court's memorandum of decision fully addresses the arguments raised in the present appeal, we adopt its concise and well reasoned decision as a proper statement of the relevant facts and the applicable law on the issues. See Freeman v. A Better Way Wholesale Autos, Inc. , Superior Court, judicial district of Hartford, Docket No. CV-13-6045900-S, 2018 WL 2306605 (May 3, 2018) (reprinted at 191 Conn. App. 110, 213 A.3d 542 ). It would serve no useful purpose for us to repeat the discussion contained therein. See, e.g., Woodruff v. Hemingway , 297 Conn. 317, 321, 2 A.3d 857 (2010) ; National Waste Associates, LLC v. Travelers Casualty & Surety Co. of America , 294 Conn. 511, 515, 988 A.2d 186 (2010) ; Tuite v. Hospital of Central Connecticut , 141 Conn. App. 573, 575, 61 A.3d 1187 (2013) ; Nestico v. Weyman , 140 Conn. App. 499, 500, 59 A.3d 337 (2013) ; Green v. DeFrank , 132 Conn. App. 331, 332, 33 A.3d 754 (2011).

The judgment is affirmed.

APPENDIX

SHARAY FREEMAN v. A BETTER WAY WHOLESALE AUTOS, INC.^*

Superior Court, Judicial District of Hartford

File No. CV-13-6045900-S

Memorandum filed May 3, 2018

Proceedings

Memorandum of decision on plaintiff's motion for supplemental attorney's fees and costs. Motion granted in part .

Daniel S. Blinn , for the plaintiff.

Kenneth A. Votre , for the defendant.

Opinion

HUDDLESTON, J. The plaintiff, Sharay Freeman, seeks $65,791.24 in supplemental attorney's 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 refund-ability 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 attorney's fees. (# 148.) The Appellate Court affirmed the judgment, and the Supreme Court denied the defendant's petition for certification to appeal. See 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 attorney's 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 attorney's fees of $49,980.

The plaintiff's request for appellate attorney's 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, "[t]he 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 attorney's 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 attorney's fees may be awarded for appellate work, Connecticut's courts have consistently construed both contractual and statutory provisions for attorney's fees to encompass appellate attorney's 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) ; id., at 337, 63 A.3d 896 ("[w]e ... will construe an attorney's fee provision that is silent with respect to appellate attorney's fees as encompassing such fees in the absence of contractual language to the contrary"); Gagne v. Vaccaro , 118 Conn. App. 367, 369–70, 984 A.2d 1084 (2009) ; id., at 370–71, 984 A.2d 1084 ("[a]lthough [General Statutes] § 52-249 ... does not specifically provide for appellate attorney's fees ... we construe the provision for attorney's fees in § 52-249 as extending to attorney's fees incurred on appeal as well as at the trial level" [citations omitted; internal quotation marks omitted] ); Crowther v. Gerber Garment Technology, Inc ., 8 Conn. App. 254, 271–72, 513 A.2d 144 (1986) (allowing appellate attorney's fees under General Statutes § 31-72 in civil action to collect wages).

Whether any attorney's 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 attorney's 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 attorney's 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 attorney's 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 cocounsel 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 attorney's 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 attorney's fees for her 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 attorney's fees under CUTPA.

"[T]he initial estimate of a reasonable attorney's fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." (Internal quotation marks omitted.) Carrillo v. Goldberg , 141...