Somers v. Chan

• Decision Date: 30 September 2008
• Docket Number: No. 29033.,29033.
• Citation: 110 Conn.App. 511,955 A.2d 667
• Court: Connecticut Court of Appeals
• Parties: David M. SOMERS v. John M. CHAN.

955 A.2d 667

110 Conn.App. 511

David M. SOMERS v. John M. CHAN.

No. 29033.

Appellate Court of Connecticut.

Argued May 22, 2008.

Decided September 30, 2008.

William J. O'Sullivan, Wethersfield, for the appellant (plaintiff).

FLYNN, C.J., and GRUENDEL and HARPER, Js.

GRUENDEL, J.

This is the latest in a series of lawsuits pursued by the plaintiff, David M. Somers, to collect an amount allegedly owed by the defendant, John M. Chan. In this appeal, we must decide whether the trial court correctly determined that the defendant was not liable for legal fees of $75,000 allegedly incurred by Lynn Chan, the defendant's former wife, and claimed by the plaintiff, her former attorney, to be due from the defendant by virtue of her assignment to the plaintiff of a lump sum alimony award. Exercising our supervisory power over the administration of justice, we affirm in part and reverse in part the judgment of the trial court.

I BACKGROUND

The tortured history of the present litigation is a tangled web.¹ It nevertheless requires substantial discussion.

A The Dissolution Action

In 1993, Lynn Chan commenced a dissolution action against the defendant. The plaintiff represented her throughout the course of that action.² As the court noted when fashioning its financial orders, "the actions of the parties and [the plaintiff] in the court system took a rather simple case and made it a cause celebre. Few issues of significance to the public were decided, and the parties and counsel all lost in the process. The court process did not function to minimize the contest, and the parties were allowed to follow through on the most trivial of pursuits. This was not a long-term marriage, and the parties had no children. They have simple assets, and the protracted dispute was well out of proportion to need or importance." The case was bifurcated, and, on April 11, 1997, the court, Barall, J., rendered judgment of dissolution. In the next two years, a series of motions, discovery contests and assignments for hearing followed, and a trial ultimately was held on the financial issues.

After the court rendered the judgment of dissolution but prior to its resolution of the financial issues, the plaintiff prepared a promissory note (note) that Lynn Chan signed on September 3, 1997.³ The note provided in relevant part: "For value received [Lynn Chan] promises to pay [the plaintiff] the principal amount of $156,872, with interest previously accrued ... at the rate of 12 percent per annum for legal fees, costs and interest per the retainer agreement.... This debt shall be repaid in full by note maker upon judicial award, transfer, sale, refinancing or foreclosure of this note maker's interest in real estate [in Avon, Connecticut, and Phoenix, Arizona].... This debt shall not be collected from the future income of [Lynn Chan] and is intended to be paid in lump sum from [her] dissolution of marriage proceedings against [the defendant] to final judgment." The note further provided that the plaintiff "is providing no legal advice or representation to [Lynn Chan] as a part of this transaction." (Emphasis in original.) Additionally, the plaintiff appended to the note copies of rules 1.7 and 1.8 of the Rules of Professional Conduct.⁴ Likewise the note stated that Lynn Chan was "advised of and provided full and fair opportunity to seek the advice of independent counsel" and that she "fully consents to this arrangement with [the plaintiff] ... the terms of which are fully disclosed and understood, and which [she] considers to be fair and reasonable."

On May 14, 1999, the court, Dranginis, J., issued a memorandum of decision in the dissolution action, in which it found that "the cause of the breakdown of this marriage was the bigamous marriage of [Lynn Chan] to one Grady Bloodworth.... [H]er conduct was the principal cause of the breakdown of the marriage." The court also addressed the validity of the attorney's fees billed to Lynn Chan, on which she sought a court award against the defendant. The court found that the plaintiff's fees totaled roughly one quarter of a million dollars. The court continued: "[T]he court is of the opinion that the fees far exceeded what was the reasonable value of the case, in light of the circumstances of the assets of the marriage.... [C]ounsel continued to engage in proceedings with the defendant, which had little if any practical or legal value for the ultimate issues which are at the core of this litigation.... If the legal fees claimed are paid, there will be no marital assets for the parties. [Lynn Chan] has been absent for the bulk of this litigation, and it appears that [the plaintiff] and the defendant developed a contested relationship of their own. The defendant examined [the plaintiff] on the validity of his bill at length. It was clear from the testimony that [the plaintiff] billed each and every interaction with [Lynn Chan] and the defendant, and it was also clear that the level of conflict in this action was high. What is incumbently [sic] clear, however, is that the matter was overly litigated, to the extent that the claim for attorneys' fees, if paid, would diminish the value of the marital estate by more than one half.... The reasonableness of the bill to [Lynn Chan], for which [she] seeks reimbursement from the defendant as part of the distribution of marital assets, must be assessed with respect to the attorney-client relationship between [Lynn Chan] and counsel. For counsel to continue to engage the defendant, who was not willing to agree to very much in the matter, worked to the detriment of his client. This court cannot countenance or approve of a bill for services rendered in a case which asks for compensation which equals more than one half of the entire marital estate."

The court thereafter entered certain financial orders that provided, inter alia, that (1) "[t]he defendant shall pay to [Lynn Chan] as lump sum alimony the sum of $75,000, in payments of no less than $15,000 per year for five (5) years. Nothing in this order should prevent the defendant from discharging this debt prior to the expiration of five (5) years"; (2) the interest in the marital home in Avon (Avon property) was to be transferred by operation of law to the defendant, and the lis pendens placed thereon by the plaintiff was to be released in light of the finding that his "fees charged are unconscionable and unenforceable"; and (3) Lynn Chan "shall be responsible for her own attorney's fees. She must bear some responsibility for the extent of litigation which spawned this huge bill, and it appears that [the defendant] copied the tactics of her counsel to keep the parties in court."

Three months later, the plaintiff was disbarred from the practice of law in the state of Connecticut as a result of his conduct in unrelated proceedings.

B The Plaintiff's Civil Action Against Lynn Chan

After enlisting the counsel of attorney Gary J. Greene, the plaintiff commenced a civil action against Lynn Chan to collect the attorney's fees allegedly due from the dissolution proceeding. Despite the fact that Judge Dranginis had declared his quarter of a million dollar fee unreasonable, unconscionable and unenforceable, the plaintiff's complaint sought to recover more than $250,000 in legal fees.⁵ Lynn Chan was not represented by counsel in that proceeding.

A series of informal communications between Lynn Chan and Greene followed. On May 21, 2002, in a handwritten note, Lynn Chan stated: "If there is some debt, alimony never paid from [the defendant] is an avenue. I'm disabled and have no assets." Greene then drafted a stipulation agreement, which he mailed to Lynn Chan in Arizona and requested her signature. Lynn Chan again replied by way of handwritten letter, in which she expressed confusion over the terms of the agreement and insisted that she be released from all liability irrespective of whether the stipulation ultimately was approved by the court. She stated: "Releasing me of all legal liability if the court did not approve was also to be incorporated into the letter we discussed and signed by [the plaintiff] and yourself....

"My signed release gives you the authority to proceed against [the defendant] as you stated in your August 16 letter and our Sep[tember] 3, [20]02 discussion. If you want the opportunity to collect [payment] from [the defendant] do it! No more word games — you'll have my signed release after I receive a signed letter from [the plaintiff] and yourself reflecting my needs indicated in my fax and this letter....

"Simplify this by doing these `basics' so you can enter this into court and get your money from [the defendant]. Remember, I get nothing, Mr. Somers, and forever leave me alone." (Emphasis in original.) By letter dated October 29, 2002, Greene assured Lynn Chan that the stipulation agreement would "relieve you of all liability to [the plaintiff] in perpetuity."

Greene repeated that assurance in his November 12, 2002 letter to Lynn Chan. He wrote: "To confirm our telephone conversation of September 3, 2002 as well as in regards to your letter which was received in this office on September 30, 2002, please accept this letter as an indication that David M. Somers & Associates, P.C., its successors and/or assigns or any of its members and/or [the plaintiff] personally will not proceed against you for any of the funds that may be due and owing to David M. Somers & Associates, P.C., once the stipulation is signed by yourself.

"It is the intention of this letter to indicate that under no circumstances will Lynn Chan be personally responsible for the outstanding debt due and owing to David M. Somers & Associates, P.C., and that your signature on the stipulation will authorize David M. Somers & Associates, P.C., to proceed against [the defendant] for the outstanding debt and to proceed against him for these funds out of the alimony that is owed to yourself.

"It is the intention of this letter to assure you...