Gagne v. Vaccaro

• Decision Date: 09 December 2003
• Docket Number: (AC 22872).
• Citation: 80 Conn. App. 436,835 A.2d 491
• Court: Connecticut Court of Appeals
• Parties: J. WILLIAM GAGNE, JR. v. ENRICO VACCARO.

80 Conn. App. 436

835 A.2d 491

J. WILLIAM GAGNE, JR. v. ENRICO VACCARO.

(AC 22872).

Appellate Court of Connecticut.

Argued September 12, 2003.

Officially released December 9, 2003.

West, McLachlan and Peters, Js. Felix Esposito, with whom was Enrico Vaccaro, pro se, for the appellant (defendant).

P. Jo Anne Burgh, for the appellee (plaintiff).

Opinion

McLACHLAN, J.

This case returns to us following a remand to the trial court by the Supreme Court. In this appeal, the defendant, Enrico Vaccaro, claims the trial court improperly (1) denied his motion to open and to set aside the judgment, (2) awarded the plaintiff offer of judgment interest and (3) granted the plaintiff's prejudgment remedy of attachment. We affirm the judgment of the trial court.

This action between attorneys originated in a personal injury matter. The plaintiff, J. William Gagne, Jr., brought an action to recover damages for the defendant's failure to pay him a portion of attorney's fees recovered in the settlement of that matter in which the plaintiff had performed a significant amount of work.¹ The complaint contained five counts, including a claim of unjust enrichment. The case was tried to the jury, which found in favor of the plaintiff on all five counts and awarded damages in the amount of $328,469.14. Pursuant to Practice Book § 16-37, the defendant filed a motion to open the judgment and to set aside the verdict, and for judgment notwithstanding the verdict, which the court granted.

The plaintiff appealed from that judgment to the Appellate Court; pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1, that appeal was transferred to the Supreme Court. On March 6, 2001, the Supreme Court decided whether a per se rule precluding recovery on the basis of quantum meruit or unjust enrichment, despite the absence of bad faith or client consent, is appropriate when an attorney fails to put into writing a contingency fee agreement pursuant to General Statutes § 52-251c. The court overruled in part Alan E. Silver, P.C. v. Jacobs, 43 Conn. App. 184, 682 A.2d 551, cert. denied, 239 Conn. 938, 684 A.2d 708 (1996), and held that an attorney who neglects to follow the dictates of § 52-251c may collect attorney's fees from a successor attorney after settlement. Gagne v. Vaccaro, 255 Conn. 390, 408, 766 A.2d 416 (2001). The judgment of the trial court was reversed in part and the case was remanded to that court to render judgment for the plaintiff on the unjust enrichment count. Id., 411.

Subsequently, on May 3, 2001, the plaintiff filed a motion for the calculation of interest pursuant to General Statutes § 52-192a and Practice Book § 17-18. One week later, in response to the plaintiff's application, the court held a prejudgment remedy hearing. In its memorandum of decision issued December 10, 2001, the court found that the plaintiff was entitled to offer of judgment and postjudgment interest, and costs and attorney's fees, and rendered judgment in favor of the plaintiff on the unjust enrichment count in the amount of $593,302.13. The court also granted the plaintiff's prejudgment remedy application, but deferred calculation of the specific amount. The defendant filed a motion to open and to set aside the judgment, which was denied by the court on May 8, 2002. On May 28, 2002, the defendant filed this appeal. By order dated June 21, 2002, the court set the prejudgment remedy amount.

I

The defendant's first claim on appeal is that the court improperly denied his motion to open and to set aside the judgment because an unjust enrichment claim cannot legally be tried to a jury. In addition, the defendant contends that the jury's verdict on that claim was rendered using an erroneous legal standard. We disagree.

"A motion to open and vacate a judgment . . . is addressed to the [trial] court's discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion.. . . In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did." (Citations omitted; internal quotation marks omitted.) Gillis v. Gillis, 214 Conn. 336, 340-41, 572 A.2d 323 (1990).

A

The defendant first argues that an unjust enrichment claim cannot legally be tried to a jury. It is well settled that there is no right to a jury trial in an equitable action. United States Trust Co. v. Bohart, 197 Conn. 34, 44-45, 495 A.2d 1034 (1985). This appeal, however, presents the issue of whether the court, in exercising its discretion, may ever submit to the jury an unjust enrichment claim when both parties consent.

We first address the defendant's contention that restitution is, in every circumstance, an equitable matter.² The defendant has provided the court no authority for that assertion. The Restatement of Restitution, however, takes the opposite view. It delineates six remedies for a person entitled to restitution, including "a judgment at law or decree in equity for the payment of money. . . ." Restatement (First), Restitution, Remedies § 4(f), p. 18 (1937).³ The Restatement thus indicates that an action for restitution may be either equitable or legal in nature.

Although the Connecticut decisions referring to this claim as "equitable" are numerous, we find only one that has addressed the dichotomy discussed in the Restatement (First), supra, Remedies § 4(f). In Misisco v. La Maita, 150 Conn. 680, 684, 192 A.2d 891 (1963), our Supreme Court, consonant with the Restatement view, explained: "[An unjust enrichment claim] is an action in quasi contract, i.e. an obligation, arising by law, on which the same remedy is given as would be given if the obligation arose out of contract. . . . Although the right of recovery is based on equitable principles, it is nevertheless an action at law, the purpose of which is to prevent unjust enrichment. . . . The only remedy is in an award of money damages. There is no merit to the claim of the defendant that the plaintiff's only right of action was in equity and that equitable relief had to be sought." (Citations omitted.) Under Connecticut law, therefore, a claim in restitution may indeed be legal in nature.

Several jurisdictions have expounded on the distinction drawn in the Restatement. In Jenkins v. Kaplan, 50 N.J. Super. 274, 141 A.2d 802 (1958), the defendant asserted that as the claim was equitable in nature, it was not cognizable by the trial court. The Appellate Division of the Superior Court of New Jersey dismissed that argument, explaining that "[a] money judgment against the party who has been unjustly enriched is the traditional restitutional remedy, and this `quasi-contractual' relief has universally been afforded at law." Id., 283. Similarly, the United States District Court for the District of Massachusetts in In re Acushnet River & New Bedford Harbor Proceedings, 712 F. Sup. 994, 1003 (D. Mass. 1989), admonished an appellant who "assumes that, because the {United States} Supreme Court [in a certain case had] mentioned the Restatement of Restitution, the remedy it fashioned was an equitable one. This assumption ignores the fact that the jurisdictions of law courts and equity courts have always overlapped with respect to restitution. . . . [M]uch of the relief we now think of as restitutionary was available in the English common law courts in an action of assumpsit."

In this case, the plaintiff's recovery was through payment of money; indeed, this entire litigation centers solely on the division of legal fees. "[O]rdinarily [a] money judgment is obtained by an action at law. . . ." Restatement (First), supra, § 4, comment (e), p. 21. One court has observed that as a general rule, "an action is to be deemed legal in nature, rather than equitable, where the only relief sought is the collection of money damages." Attebery v. Attebery, 507 S.W.2d 87, 90 (Mo. App. 1974). We also note that the money payment recovery in this case falls within none of the "equitable" remedies specified in the Restatement.⁴ "[I]n many situations a proceeding in equity is denied because the remedy at law is adequate. . . ." Restatement (First), supra, introductory note, p. 4. The Pennsylvania Supreme Court has addressed such a situation: "The court below held that this action was cognizable in equity rather than in law because the equitable principle of unjust enrichment was involved. This reasoning overlooks the fact that law courts can and do apply equitable principles so long as the remedy sought is one within their power to grant. Since law courts can give the remedy of money damages, an adequate remedy existed at law in the form of an action in assumpsit and equity therefore had no jurisdiction." (Emphasis in original.) Meehan v. Cheltenham Township, 410 Pa. 446, 448-49, 189 A.2d 593 (1963). As the court here found money damages to be an adequate remedy, and in light of both the Misisco precedent and the distinction drawn in the Restatement, we conclude that this particular action for restitution more aptly is characterized as legal, rather than equitable, in nature.

Even were we to find this claim for restitution to be an equitable one, such a conclusion would not necessarily foreclose its submission to the jury. First, the court is statutorily permitted to submit equitable claims to the jury in certain circumstances. General Statutes § 52-218,⁵ as well as Practice Book § 16-10,⁶ provides the court in an equitable action the power to submit issues of fact to the jury upon the application of a party. The statute is discretionary, however, and does not create a right to have issues of fact tried by a jury in an equitable action. Once a party has requested the trial court to submit issues of fact to the jury on an equitable claim, the court has the power...