Traystman, Coric and Keramidas v. Daigle

• Decision Date: 15 May 2007
• Docket Number: No. 17591.,17591.
• Citation: 282 Conn. 418,922 A.2d 1056
• Court: Connecticut Supreme Court
• Parties: TRAYSTMAN, CORIC AND KERAMIDAS, P.C. v. Andrew J. DAIGLE.

922 A.2d 1056

282 Conn. 418

TRAYSTMAN, CORIC AND KERAMIDAS, P.C. v. Andrew J. DAIGLE.

No. 17591.

Supreme Court of Connecticut.

Argued January 4, 2007.

Decided May 15, 2007.

Lloyd L. Langhammer, Norwich, with whom, on the brief, was Matthew J. Curtiss, for the appellant (plaintiff).

James H. Lee, Fairfield, with whom were Martin M. Rutchik, Norwich, and Andrew J. Daigle, pro se, for the appellee (defendant).

BORDEN, NORCOTT, KATZ, VERTEFEUILLE and ZARELLA, Js.

VERTEFEUILLE, J.

The primary issue in this appeal¹ is whether the trial court properly awarded attorney's fees to the defendant, Andrew J. Daigle, pursuant to General Statutes § 42-150bb² on the basis of a bill of costs filed pursuant to Practice Book § 18-5.³ We conclude that it did not and we reverse the judgment of the trial court.

The factual background of the underlying action is set forth in the Appellate Court's opinion in Traystman, Coric & Keramidas, P.C. v. Daigle, 84 Conn.App. 843, 844-45, 855 A.2d 996 (2004). In that decision, the Appellate Court considered the enforceability of a promissory note in the amount of $26,973 executed by the defendant in favor of the plaintiff, Traystman, Coric and Keramidas, P.C., a law firm, to secure payment for services that the plaintiff had provided in connection with the defendant's marital dissolution proceedings. Id. The Appellate Court concluded that the trial court's determination that the promissory note was void because the defendant had executed it under duress was not clearly erroneous. Id., at 849, 855 A.2d 996. Accordingly, the Appellate Court affirmed the trial court's judgment in favor of the defendant. Id.

The Appellate Court's opinion was released on September 7, 2004. On October 21, 2004, the defendant filed a second amended bill of costs⁴ in which he requested costs in the amount of $1287.19 for defending the action on the note. Specifically, the defendant requested $50 for "[p]roceedings before trial" (item one); $75 for "[t]rial" (item two); $200 for "[d]efense of claim" (item three); $30 for "[d]eposition" (item four); $121.35 for "[m]arshal fee for service" (item five); $310.84 for "[t]ranscripts used in evidence" (item six); $200 for "[i]nvestigative costs" (item seven); $100 for "[a]ppellate proceeding" (item eight); and $200 for "[r]eproduction of appellate briefs" (item nine).

In addition, the defendant requested attorney's fees of $350 pursuant to Practice Book § 17-13⁵ based on an offer of judgment he had made but that had been rejected by the plaintiff in the underlying action, and "attorney's fees of approximately $11,048.75 for trial and approximately $20,000 for the appellate matter" pursuant to § 42-150bb. The defendant stated that "[t]he approximate fee for trial is based upon [the] plaintiff's estimated counsel fees as stated by [the] plaintiff's counsel in his [t]rial [b]rief of February 25, 2003, for a period ending February 27, 2003. The approximate fee for the appellate matter was determined by an estimate of the fee for [the] plaintiff's counsel. Upon substantiation of actual fees charged by [the] plaintiff's counsel for both the trial and the appeal, the actual attorney's fee for [the] defendant's counsel can be determined. The method of determination of fees of [the] defendant's counsel is in accordance with ... § 42-150bb ...."

The plaintiff objected generally to the defendant's bill of costs on the ground that no costs had been taxed in favor of either party. It also objected specifically to items three and five through nine,⁶ to the request for $350 in attorney's fees pursuant to Practice Book § 17-13, and to the request for attorney's fees pursuant to § 42-150bb. With respect to the request for attorney's fees pursuant to § 42-150bb, the plaintiff claimed that the defendant was not entitled to such fees because: (1) he never had filed a counterclaim or requested attorney's fees in any claim for relief; (2) attorney's fees cannot be requested in a bill of costs; (3) the defendant had provided no supporting documentation; (4) § 42-150bb did not apply to this case; and (5) the request was untimely under Practice Book § 11-21.⁷ The defendant then filed a reply to the plaintiff's objection in which he claimed that: (1) the contract between the parties was a consumer contract subject to § 42-150bb; (2) under that statute, the amount of the award should be based on the fee that the defendant would have been required to pay to the plaintiff if it had prevailed; (3) the defendant previously had filed bills of costs claiming attorney's fees but, in any event, he was not required to give notice of his intent to make such a claim prior to judgment under Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 689 A.2d 1097 (1997); and (4) the trial court's general knowledge of the trial constituted a sufficient basis for the determination of a reasonable attorney's fee without additional documentation.

The court clerk granted items one, two and four of the defendant's bill of costs in the amount of $155 and advised the parties that item three and the requests for attorney's fees pursuant to Practice Book § 17-13 and § 42-150bb had been referred to the trial court. The court conducted a hearing on the bill of costs on February 14, 2005. The court first addressed the plaintiff's objections to items three and five through nine. With respect to item three, the court found that the case was sufficiently difficult to come within General Statutes § 52-257(a)(3), and awarded the $200 defense costs. After a brief discussion of items five through nine, the defendant waived his claims for each of those items. Addressing the plaintiff's claim for $350 in attorney's fees pursuant to Practice Book § 17-13, the court concluded that it should award that item. The court then noted that § 17-13 provided that the plaintiff "shall also pay [the] defendant's costs accruing after [receipt of the defendant's offer of compromise]," and asked the defendant whether he had requested any such costs. The defendant responded that all of the items in the bill of costs "should be picked up under the fact that [the plaintiff] didn't accept the [defendant's offer of compromise]." After additional discussion, and over the plaintiff's objection, the court concluded that it would award items five through nine "upon produc[tion] of the bills to support those costs."

The court then addressed the defendant's claim for attorney's fees pursuant to § 42-150bb. Counsel for the defendant argued that, under the statute, the defendant was entitled to attorney's fees in the amount that the plaintiff, as the commercial party to the underlying consumer contract, had expended in attorney's fees during the trial of the action. He noted that, in its trial brief on the underlying action on the promissory note, the plaintiff had represented that its attorney's fees through the conclusion of the trial amounted to $11,048.75. Counsel for the defendant also gave the trial court a copy of a letter from the defendant to counsel stating that counsel would represent him for $125 per hour and one third of any reduction of the amount owed by the defendant on the promissory note, less any accumulated hourly charges. Counsel for the plaintiff objected that the letter had not been marked as an exhibit and that he had had no opportunity to cross-examine counsel for the defendant with regard to the letter. The court remarked that "[t]he letter doesn't mean a thing," and stated that it would not "award anything if [counsel for the defendant did not] give [the court] a number."

At that point, pursuant to a subpoena duces tecum that the defendant previously had served on counsel for the plaintiff, counsel for the defendant asked counsel for the plaintiff to take the witness stand to produce the plaintiff's legal bills and to testify as to the amount of the plaintiff's attorney's fees. Counsel for the plaintiff objected that the defendant could not seek attorney's fees under § 42-150bb without having filed a counterclaim seeking that specific relief and that the statute did not apply to this action in any event. He further argued that the defendant had failed to comply with the timing provisions of Practice Book § 11-21. The court overruled the objections and counsel for the defendant again asked counsel for the plaintiff to take the witness stand. Counsel for the plaintiff then pointed out that he had filed a motion for a protective order and a motion to quash the defendant's subpoena. The court stated that it would not require counsel for the plaintiff to produce any documents, but ordered him to tell counsel for the defendant the amount of his fees for trying this action. Counsel for the plaintiff responded that the fees were approximately $12,000.

The defendant also argued at the hearing that he was entitled to $20,000 in attorney's fees for the proceedings on appeal to the Appellate Court. In support of that claim, the defendant relied on an affidavit from Wesley Horton, an attorney specializing in appellate law, stating that a reasonable fee for handling the appeal would be $30,000 if Horton personally had handled the appeal and $20,000 if one of his partners had handled the appeal. The affidavit had been attached to the defendant's December 21, 2004 reply to the plaintiff's objection to the second amended bill of costs.

At the close of the hearing, counsel for the plaintiff requested that he be allowed to submit a brief on the issue of whether the defendant had met his burden of establishing a basis for an award of attorney's fees. The trial court responded that all briefs were to have been filed on the date of the hearing and that no further briefs would be allowed.

On February 15, 2005, the day after the hearing, counsel for the defendant sent a letter to the trial court, with a copy to counsel for the plaintiff, to which he attached several pages of typewritten notes concerning his representation of the defendant, a bill in the...