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Dowling v. Schupp

Superior Court of Connecticut, Judicial District of Hartford, Hartford

November 12, 2015

Vincent J. Dowling, Jr. et al.
v.
David A. Schupp et al

Filed Date November 18, 2015

MEMORANDUM OF DECISION ON REQUEST FOR ATTORNEYS FEES

Joseph M. Shortall, Judge Trial Referee.

This is a case that was tried to this court on March 12, 2015. In a memorandum of decision dated July 23, 2015 this court found for the plaintiffs on both counts of their complaint; namely, count one, alleging tortious interference by the defendants with contractual rights of the plaintiffs that arose out of the latter's sale of their membership interests in an LLC, and count two, alleging that the defendants' actions amounted to a violation of the Connecticut Unfair Trade Practices Act (CUTPA).

This court further found that, " having proven the elements of the intentional wrong of tortious interference with business relations, the plaintiffs are entitled to punitive damages in the form of the reasonable attorneys fees, costs and expenses they incurred for the prosecution of this action." Memorandum of Decision, docket entry #141, p. 23 (memorandum). Pursuant to an order of the court, the plaintiffs submitted an affidavit of those fees, costs and expenses. Docket entry #149.

This litigation was preceded by a contract action filed by the same plaintiffs against the members of the LLC to whom the plaintiffs had sold their membership interests. Vincent J. Dowling et al. v. Alirt Insurance Research, LLC et al., Superior Court, judicial district of Hartford, Docket No. CV 10 6016140 (contract action). The plaintiffs alleged that the defendants in that case had failed to assign to them credits against the plaintiffs' state tax liabilities totaling $1, 000, 000.00, as the defendants were obligated to do under the terms of the agreement for their purchase of the plaintiffs' membership interests (redemption agreement).[1] The plaintiffs prevailed in that action as well. By way of a memorandum of decision dated March 21, 2013 the court (Wahla, J.) found that the defendants breached their contractual obligation to assign tax credits to the plaintiffs, as well as the covenant of good faith and fair dealing inherent in their contractual obligation. Id., docket entry #156. The court in that action ordered the defendants to make the plaintiffs whole by a combination of a cash payment of $200, 000.00 for tax credits not assigned in 2009 and 2010 and assignment of the credits available from 2012 forward until the entire $1, 000, 000.00 had been made available. Id., docket entry #156.10. On July 1, 2013 the plaintiffs filed a satisfaction of judgment in that case; thus, they have received the full $1, 000, 000.00 of tax credits to which they were entitled under the redemption agreement.

This court found that " the evidence establishes that these defendants' diversion of the tax credits[2] forced the plaintiffs to bring and litigate the contract action in order to obtain the benefit of their bargain in the redemption agreement . . ." Docket entry #141, p. 23. As a result, the plaintiffs " are entitled to the reasonable attorneys fees, costs and expenses incurred in connection with that action as punitive damages under the CUTPA count of their complaint in this action, assuming they can satisfy the court that the defendants acted with 'a reckless indifference to the rights of [the plaintiffs]' or intentionally and wantonly violated those rights. (Internal citations and quotation marks omitted.) See Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987)."

Pursuant to an order of the court, the plaintiffs submitted an affidavit of those fees, costs and expenses. Docket entry #148.

On September 9, 2015 the court conducted a hearing to determine the reasonable attorneys fees, costs and expenses to which the plaintiffs are entitled. The plaintiffs' attorney, Richard P. Weinstein, testified at that hearing and was examined by counsel for the defendants. In addition, two exhibits were received into evidence without objection. Exhibit 1 consists of the bills for attorneys fees submitted to the plaintiffs by Attorney Weinstein's office.[3] Attorney Weinstein testified that all of the bills had been paid by the plaintiffs and in the amounts requested. At the conclusion of the hearing counsel for the defendants, in response to a question from the court whether he objected to the hourly fees claimed by the plaintiffs, stated that he was not " conceding" that the amounts claimed were reasonable and that he would leave the determination of what is reasonable in both cases to the court's discretion.

Exhibit 2 is a collection of bills from providers of various services; e.g., court reporters and marshals, submitted to and paid by Attorney Weinstein's office on behalf of the plaintiffs. By way of " PAID" stamps on the bills, it appears that all of them have been paid and in the amounts requested.

In connection with the contract action tried in 2013 before Judge Wahla the plaintiffs are seeking payment of attorneys fees in the amount of $65, 328.50 and costs in the amount of $2, 577.40. For this action, tried before this court, the plaintiffs are seeking payment of attorneys fees in the amount of $34, 552.50 and costs of $1, 506.54.

" An award of attorneys fees is not a matter of right. Whether any award is to be made and the amount thereof lie within the discretion of the trial court, which is in the best position to evaluate the particular circumstances of a case . . . A court has few duties of a more delicate nature than that of fixing counsel fees." (Internal quotation marks and citation omitted.) Bobinski v. Kalinowski, 107 Conn.App. 622, 628, 946 A.2d 283 (2008).

" [T]he initial estimate of a reasonable attorneys fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate . . . The courts may then adjust this lodestar calculation by other factors." (Citation omitted; internal quotation marks omitted.) Laudano v. New Haven, 58 Conn.App. 819, 822-23, 755 A.2d 907 (2000). " For guidance in adjusting attorneys fees, Connecticut courts have adopted the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). The Johnson factors are (1) the time and labor required, (2) the novelty and difficulty of the questions, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee for similar work in the community, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation and ability of the attorneys, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Id. " Ernst v. Deere & Co., 92 Conn.App. 572, 576, 886 A.2d 845 (2005). The court can also apply its own knowledge and experience in determining the reasonableness of the fees requested. See Smith v. Snyder, 267 Conn. 456, 480, 839 A.2d 589 (2004).

This court found that Mr. Schupp, knowing that the plaintiffs were contractually entitled to $1, 000, 000.00 in tax credits as partial compensation for their interests in the LLC, intentionally violated those rights when he sold those credits to a third party for his own financial gain, thus making them unavailable for assignment to the plaintiffs.[4] Thus, he knowingly and intentionally interfered with the plaintiffs' contractual rights without justification. Based on the evidence received at trial, this court finds, further, that his actions in so doing were committed with " a reckless indifference to the rights of" the plaintiffs. See Gargano v. Heyman, supra . The plaintiffs have proven their right to punitive damages in the form of attorneys fees and the costs and expenses of litigation on both counts.

The court has closely examined the bills for attorneys fees submitted for both the contract case and this litigation. It finds that the hourly rate charged by Attorney Weinstein was reasonable, given his experience and demonstrated skill in this type of commercial litigation. The $310 hourly rate attributed to the attorneys who did work in support of Attorney Weinstein is reduced to $200, a rate the court considers reasonable. The $130 hourly rate for Attorney Weinstein's paralegal is found to be reasonable. The defendants have made no argument that the hours claimed to have ...


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