Shapero v. Mercede

• Decision Date: 17 June 2003
• Docket Number: (AC 21230).
• Citation: 77 Conn. App. 497,823 A.2d 1263
• Court: Connecticut Court of Appeals
• Parties: PAUL D. SHAPERO v. FRANK MERCEDE, JR.

77 Conn. App. 497

823 A.2d 1263

PAUL D. SHAPERO v. FRANK MERCEDE, JR.

(AC 21230).

Appellate Court of Connecticut.

Argued February 18, 2003.

Officially released June 17, 2003.

Schaller, Dranginis and Bishop, Js.¹

Brenden P. Leydon, for the appellant (plaintiff).

Anthony J. LaBella, with whom, on the brief, was Neal L. Moskow, for the appellee (defendant).

Opinion

DRANGINIS, J.

This case returns to us on remand from our Supreme Court. Shapero v. Mercede, 262 Conn. 1, 11, 808 A.2d 666 (2002). In reversing the prior decision of this court,² our Supreme Court remanded the case to us "for consideration of the plaintiff's claim on cross appeal regarding the propriety of the $5000 [credit]." Id. Before turning to the merits of the claim that we must consider on remand, we first set forth some of the relevant facts and procedural history of this case.

"In May, 1995, the defendant [Frank Mercede, Jr.] hired the plaintiff [Paul D. Shapero], an attorney, to represent him in a tax appeal to reduce the assessment on two commercial properties owned by the defendant.³ On May 17, 1995, the defendant paid the plaintiff a $5000 retainer and entered into an agreement to pay the plaintiff on a contingency fee basis. In May, 1997, the defendant discharged the plaintiff and hired substitute counsel on an hourly basis. Within four months, substitute counsel had successfully concluded the defendant's appeal.... The defendant paid substitute counsel $15,000 for services rendered in resolving the matter.

"On February 8, 1998, the plaintiff filed an action against the defendant to recover legal fees under causes of action sounding in quantum meruit, breach of contract, unjust enrichment, violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and fraud. The defendant thereafter alleged two special defenses: (1) that the plaintiff was paid for his work, and (2) that the plaintiff breached the standard for professional conduct within the legal community.⁴ On December 28, 1999, the matter was heard by [an attorney trial] referee. During the hearing, the plaintiff presented no evidence relating to the hourly rate that he charged the defendant. The plaintiff testified that he had reasonably spent 100 hours on the defendant's case.

"On May 31, 2000, the referee filed a report recommending judgment for the plaintiff in the amount of $27,500 with $5000 credited against the retainer. The referee arrived at those figures by calculating the plaintiff's hourly rate at $275 multiplied by 100 hours.... On July 11, 2000, the court, Karazin, J., accepted the referee's report.... On October 2, 2000, the plaintiff filed a motion for articulation. In response, the court on November 6, 2000, filed a memorandum of decision upholding the referee's findings and her crediting of the $5000 retainer against the amount of the judgment."⁵ (Internal quotation marks omitted.) Shapero v. Mercede, supra, 262 Conn. 3-4.

The defendant appealed to this court, claiming, inter alia, that the trial court "improperly (1) awarded the plaintiff damages on his claim for nonpayment of legal fees when the ... referee ... had found that no evidence as to the value of the plaintiff's services had been introduced at the hearing ...." Shapero v. Mercede, 66 Conn. App. 343, 344, 784 A.2d 435 (2001), rev'd, 262 Conn. 1, 808 A.2d 666 (2002). The plaintiff made various arguments in response and also filed a cross appeal, maintaining that the court improperly permitted the defendant to obtain a credit of $5000 when the defendant had not pleaded it as a special defense or setoff. Id. We agreed with the defendant with regard to his first claim and, therefore, declined to address his other claims. Id., 346. We did not reach the plaintiff's claim on the cross appeal.⁶ Id., 353. Consequently, we reversed the court's judgment and remanded the case with direction to render judgment for the defendant. Id.

Our Supreme Court granted the plaintiff's petition for certification to appeal; see Shapero v. Mercede, 258 Conn. 944, 786 A.2d 430 (2001); reversed our decision; see footnote 2; and remanded the case to this court "for consideration of the plaintiff's claim on cross appeal regarding the propriety of the $5000 [credit]." Shapero v. Mercede, supra, 262 Conn. 11. We conclude that the trial court properly credited the $5000 retainer amount paid by the defendant against the amount of the damages awarded to the plaintiff. Accordingly, we affirm the judgment of the trial court.

Our standard of review in cases referred to attorney trial referees is well settled. "A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court . . . or the Superior Court reviewing the findings of . . . attorney trial referees. . . . [A]ttorney trial referees and factfinders share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court. . . .

"[B]ecause the attorney trial referee does not have the powers of a court and is simply a fact finder, [a]ny legal conclusions reached by an attorney trial referee have no conclusive effect. . . . The reviewing court is the effective arbiter of the law and the legal opinions of [an attorney trial referee], like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment. . . . Where legal conclusions are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts found by the . . . referee." (Citations omitted; internal quotation marks omitted.) Alliance Partners, Inc. v. Oxford Health Plans, Inc., 263 Conn. 191, 201-202, 819 A.2d 227 (2003).

The plaintiff claims that because the defendant did not plead a special defense or setoff regarding the $5000 credit, the court improperly accepted the referee's recommendation to credit the $5000 retainer payment against the amount of the damages awarded to the plaintiff.⁷ The plaintiff does not contest the referee's factual finding that the defendant paid him the $5000 retainer. Rather, the plaintiff maintains that the $5000 credit recommended by the referee was improper as a matter of law, as the defendant did not plead a special defense or setoff. The plaintiff argues that regardless of whether the $5000 credit is characterized as a defense of payment or as a setoff, it should have been affirmatively pleaded as such, in accordance with Practice Book §§ 10-50 or 10-54.⁸ The plaintiff contends that by crediting the $5000 retainer payment against the other damages in the absence of such an affirmative pleading by the defendant, the court improperly founded its judgment on facts or issues outside of those raised in the pleadings. We disagree.

At the outset, we note that "[p]leadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them." (Internal quotation marks omitted.) Yellow Page Consultants, Inc. v. Omni Home Health Services, Inc., 59 Conn. App. 194, 200, 756 A.2d 309 (2000). The purpose of a complaint, special defense or counterclaim is to limit the issues at trial, and such pleadings are calculated to prevent surprise. See id.; New Milford Savings Bank v. Roina, 38 Conn. App. 240, 244, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). "It is fundamental in our law that the right of a [party] to recover is limited to the allegations in his [pleading]. . . . Facts found but not averred cannot be made the basis for a recovery." (Internal quotation marks omitted.) Yellow Page Consultants, Inc. v. Omni Home Health Services, Inc., supra, 200; see also Westfall v. Westfall, 46 Conn. App. 182, 185, 698 A.2d 927 (1997) ("judgment cannot be founded on a finding of facts not in issue, although they may have been shown in evidence to which no proper objection was taken"). Thus, it is clear that "[t]he court is not permitted to decide issues outside of those raised in the pleadings." Yellow Page Consultants, Inc. v. Omni Home Health Services, Inc., supra, 59 Conn. App. 200. "It is equally clear, however, that the court must decide those issues raised in the pleadings." Moulton Bros., Inc. v. Lemieux, 74 Conn. App. 357, 361, 812 A.2d 129 (2002).

The sixth count of the plaintiff's complaint sounds in quantum meruit, and, in that count, the plaintiff himself raises facts relating to the retainer as the predicate for his claim.⁹ Our Supreme Court has explained that "[t]he measure of damages in quantum meruit is the value of the services rendered. . . . Quantum meruit literally means as much as he has deserved. . . ." (Citation omitted; emphasis added; internal quotation marks omitted.) Shapero v. Mercede, supra, 262 Conn. 7; see Cole v. Myers, 128 Conn. 223, 230, 21 A.2d 396 (1941).¹⁰ "[Q]uantum meruit arises out of the need to avoid unjust enrichment to a party, even in the absence of an actual agreement. . . . Centered on the prevention of injustice, quantum meruit strikes the appropriate balance by evaluating the equities and guaranteeing that the party who has rendered services receives a reasonable sum for those services." (Citations omitted; internal quotation marks omitted.) Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001). Quantum meruit damages provide restitution for amounts not previously paid. See United Coastal Industries, Inc. v. Clearheart Construction Co., 71 Conn. App. 506, 511-12, 802 A.2d 901 (2002); see also Gagne v. Vaccaro, supra, 401; Sidney v. DeVries, 215 Conn. 350, 351-52 n. 1, 575 A.2d 228 (1990); Burns v. Koellmer, supra, 11 Conn. App. 375, 383-85,...