ROBERT M. ELLIOTT, PC v. Stuart

• Decision Date: 18 May 1999
• Docket Number: (AC 17937)
• Parties: ROBERT M. ELLIOTT, P.C. v. MARK STUART
• Court: Connecticut Court of Appeals

53 Conn. App. 333

730 A.2d 1176

ROBERT M. ELLIOTT, P.C. v. MARK STUART

(AC 17937)

Appellate Court of Connecticut.

Argued January 26, 1999.

Officially released May 18, 1999.

Landau, Spear and Hennessy, Js. David M. Fisher, with whom, on the brief, was Robert H. Weinstein, for the appellant (defendant).

Robert M. Levin, for the appellee (plaintiff).

Opinion

LANDAU, J.

In this collection action, the defendant, Mark Stuart, a dentist, appeals from the judgment of the trial court rendered in favor of the plaintiff law firm, Robert M. Elliott, P.C. On appeal, the defendant claims that the trial court improperly (1) sustained the plaintiffs objections to certain questions posed by the defendant during cross-examination, (2) permitted evidence of the defendant's income to be admitted into evidence, (3) awarded excessive attorney's fees for the prosecution of the collection action and (4) accepted the affidavit of the plaintiffs counsel as to attorney's fees, which did not include contemporaneous time records. We affirm the judgment of the trial court.

Following a trial to the court, the court found the following facts. On November 13, 1995, the Connecticut state dental commission (commission) summarily suspended the defendant's license to practice dentistry because a young female patient complained that the defendant had stalked and harassed her. The patient alleged that the defendant, under the guise of needing to talk with her about her dental care, obtained the address of the patient's employer in Washington, D.C., from the patient's mother. The patient also alleged that the defendant went to her place of employment in an attempt to meet her socially. At the time the patient made her complaint, the defendant's license was in a probationary status. Four or five other patients had also complained to the commission about the defendant and his license had been suspended once previously.

On November 17, 1995, the defendant met with Robert M. Elliott, an attorney and principal of the firm, to obtain legal representation. The defendant represented to Elliott that he was losing $30,000 a month due to the suspension and that he wanted Elliott to take all steps necessary to restore his license. In the years immediately prior to the 1995 suspension, the defendant earned approximately $200,000 to $400,000 per year from his dental practice.

During their first meeting, the defendant signed a retainer agreement, which provided, in part, that the plaintiffs fee would be based on the amount of time spent and listed the hourly rates of the plaintiffs employees. The agreement also provided: "Balances on your account are due and payable upon receipt of your statement. Interest will accrue on any outstanding balances after thirty days at ten percent per annum. Should you fail to pay your balances, you will be responsible for all costs of collection, including sheriffs fees and a reasonable attorney's fee."

The defendant knew and agreed that Elliott, the other attorneys and the paralegals in the firm would work on his case. Because the loss of his license prevented the defendant from earning a living, Elliott gave the defendant's case priority over other legal matters and assigned various aspects of the case to employees of the firm. The plaintiff was successful in having the defendant's dental license reinstated, but the defendant failed to pay the plaintiff in accordance with the retainer agreement. The plaintiff, therefore, commenced this collection action.

The trial court concluded that the work done by the firm was reasonable and necessary and that the result obtained was "almost miraculous" because the defendant's license to practice dentistry was reinstated on January 5, 1996, approximately six weeks after it was suspended. The trial court awarded the firm $13,637.33 for services rendered before the commission, $2275.73 in interest and $15,000 in attorney's fees for the collection action, plus costs. The defendant appealed.

Three of the defendant's claims on appeal are of an evidentiary nature. "It is well settled that [t]he trial court's ruling on the admissibility of evidence is entitled to great deference. State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). [T]he trial court has broad discretion in ruling on the admissibility ... of evidence.... The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion.... State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997). Moveover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice." (Emphasis in original; internal quotation marks omitted.) Paige v. St. Andrew's Roman Catholic Church Corp., 247 Conn. 24, 37, 718 A.2d 425 (1998).

I

The defendant's first claim is that the trial court improperly sustained the plaintiffs objections to the defendant's cross-examining members of the firm with respect to the reasonableness of the services rendered and the fees charged. We disagree.

The portions of the defendant's cross-examination relevant to our analysis follow.

"[Defendant's Counsel]: Okay. Is it your understanding that Dr. Selig's involvement in the Stuart matter before the health department was in any way beneficial?

"[Plaintiffs Counsel]: I'm going to object, Your Honor. I'm not sure what the relevance of any of this is at this point.

"[Defendant's Counsel]: Well, Your Honor, it is my client's position that Dr. Selig was, obviously, crucial to the reinstatement of his license, and since Mr. Elliott is the senior partner and main mover on the file—by his own admission, I think—I'm trying to determine what he knew about Dr. Selig and Dr. Selig's involvement in the proceedings.

"The Court: Do I understand correctly that, as of January fifth, the license was reinstated?

"[Defendant's Counsel]: That's correct. "[Plaintiff's Counsel]: Yes, Your Honor, on that date it was reinstated, following the reconsideration hearing.

"The Court: So, why does it matter? If this was a case attacking Attorney Elliott's competency and the manner in which he handled these hearings, perhaps this would be relevant. As I take it, it's not. I don't think it's relevant. I'll sustain the objection.

* * *

"[Defendant's Counsel]: Wasn't Judge Maloney's direction to you that an injunction was an inappropriate remedy and that you should have, that the administrative appeal was the sole proceeding that was available to you?

"[Plaintiffs Counsel]: Your Honor, I'm going to object again, I—

"The Court: Sustained.

"[Plaintiffs Counsel]:—think he's belaboring something.

"The Court: I've heard enough of this line.

* * *

"[Defendant's Counsel]: Okay. And did you determine at that time that an administrative appeal might be appropriate?

"[Plaintiffs Counsel]: I'm going to object, Your Honor. I believe on direct ....

"The Court: Sustained.

* * *

"[Defendant's Counsel]: Was a motion for stay ever filed?

"[Plaintiff's Counsel]: I'm going to object. Again, relevance. "The Court: Sustained.

"[Defendant's Counsel]: Now, with the exception of my handwritten notes at the top ... is that the sum and substance of Judge Maloney's decision?

"[Plaintiffs Counsel]: I'm going to object, Your Honor. I don't know what the relevance of Judge Maloney's decision might be at this point in time.

"[Defendant's Counsel]: Well, it is our position, Your Honor, that Judge Maloney's decision, as short and succinct as it was, clearly indicates that the bringing of the injunction was not an appropriate proceeding, and I'm going to offer that, this decision as an exhibit.

"The Court: I'll sustain the objection. I thought I made it clear, whether or not, ultimately, certain legal pathways are successful, when one's client is in the situation Dr. Stuart was in, and the fact that certain things are brought and are unsuccessful is not necessarily not deserving of compensation, and my feeling is I probably would have done the same thing they did, so if that doesn't convince you not to pursue this avenue I hope it does.

* * *

"[Defendant's Counsel]: And that's a memo from you to Mr. Elliott regarding that phone call with Mr. Oaken?

"[Witness]: Correct.

"[Defendant's Counsel]: I offer it.

"[Plaintiffs Counsel]: I'd inquire for what purpose.

"[Defendant's Counsel]: To substantiate through documentary evidence the testimony that just came in.

"The Court: But what's the relevance of that testimony? Mr. Oaken's not on trial here. I don't understand Mr. Oaken—what the relevance of his referral fee to this case is.

"[Defendant's Counsel]: Well, Your Honor, it has been my client's position that he has been overbilled, overcharged. Okay? That's what we've been trying to prove here, and a claim by another attorney for a referral fee which shows some motive or basis for my client's position that he was overcharged.

"The Court: I'll sustain the objection."

"[B]efore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful.... When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result.... Any testimony in a case that tends of itself or in connection with other testimony to influence the result on a fact in issue is material. If the testimony would tend to affect the verdict of the jury, it meets the test of materiality." (Citations omitted; internal quotation marks omitted.) Swenson v. Sawoska, 215 Conn. 148, 153, 575 A.2d 206 (1990). The testimony that the defendant attempted to put into evidence as cited above is not material because, as the trial court correctly...