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Rosenthal Law Firm, LLC v. Cohen

Court of Appeals of Connecticut

May 28, 2019


          Argued January 2, 2019

         Procedural History

         Action to recover damages for breach of contract, and for other relief, brought to the Superior Court in the judicial district of Hartford and tried to the court, Shapiro, J.; judgment for the defendant, from which the plaintiff appealed to this court. Affirmed.

          Edward Rosenthal, with whom, on the brief, was Daniel J. Klau, for the appellant (plaintiff).

          James D. Cohen, self-represented, the appellee (defendant).

          Lavine, Elgo and Bear, Js.


          BEAR, J.

         This action between the plaintiff, Rosenthal Law Firm, LLC, and its former client, the defendant, James Cohen, arises out of a fee dispute that had been resolved in the plaintiff's favor during a prior arbitration proceeding. Following the confirmation of the arbitration award, the plaintiff commenced the present action seeking attorney's fees, pursuant to a contract between it and the defendant, for its prosecution of the fee dispute. After a trial to the court, the trial court rendered judgment in the defendant's favor, from which the plaintiff now appeals. The plaintiff claims on appeal that the court erred in concluding that it was not entitled to attorney's fees because it had represented itself, through its sole member, in the arbitration and award confirmation proceedings. We disagree and, accordingly, affirm the judgment of the trial court.

         The following facts and procedural history are relevant to our resolution of the plaintiff's claim. On December 1, 2011, the parties entered into an agreement for legal services (retainer agreement) whereby they agreed, in paragraph 12, that in the event the defendant failed to pay the plaintiff its agreed on fee or expenses, he would be liable for ‘‘all costs related to a collection action including [the plaintiff's] attorney's fees and interest at the annual rate of ten percent . . . .'' On March 3, 2014, the plaintiff petitioned the legal fee resolution board of the Connecticut Bar Association (board) to resolve a fee dispute that had arisen between the parties. On December 24, 2014, a panel of three arbitrators found that the plaintiff was owed $109, 683 in fees for its representation of the defendant. The plaintiff subsequently filed an application to confirm the arbitration award in the Superior Court, which the court, Scholl, J., granted on March 17, 2015. The defendant appealed to this court, which affirmed the trial court's judgment confirming the arbitration award, and our Supreme Court denied the defendant's petition for certification to appeal. See Rosenthal Law Firm, LLC v. Cohen, 165 Conn.App. 467, 473, 139 A.3d 774, cert. denied, 322 Conn. 904, 138 A.3d 933 (2016). Attorney Edward Rosenthal, the sole member of the plaintiff, represented the plaintiff throughout the proceedings before the board and in the trial and appellate courts.

         On April 1, 2016, the plaintiff commenced the present action alleging, inter alia, that the defendant breached the retainer agreement by failing and refusing to pay for the legal services it had rendered and that, as a result, it suffered damages in the form of ‘‘considerable time [spent] in collecting its fees from the defendant'' in arbitration and the related court proceedings. As clarified in its trial brief, the plaintiff sought to recover the attorney's fees and interest prescribed by paragraph 12 of the retainer agreement. More specifically, the plaintiff claimed that it had incurred $59, 600 in ‘‘legal fees'' in connection with the arbitration and related court proceedings, which reflected the time spent by Rosenthal on these matters.

         On October 18, 2017, following a trial to the court, the trial court, Shapiro, J., issued a memorandum of decision in which it concluded that the plaintiff was not entitled to recover attorney's fees under paragraph 12 of the retainer agreement because it had effectively represented itself throughout the proceedings at issue, and ‘‘[t]he law of this state is that pro se litigants are not entitled to attorney's fees.'' (Internal quotation marks omitted.) In so concluding, the trial court relied on Jones v. Ippoliti, 52 Conn.App. 199, 212, 727 A.2d 713 (1999), in which this court extended the rule adopted in Lev v. Lev, 10 Conn.App. 570, 575, 524 A.2d 674 (1987)-barring self-represented litigants generally from recovering attorney's fees-to self-represented attorney litigants. Accordingly, the trial court rendered judgment in favor of the defendant. This appeal followed.

         The plaintiff's sole claim on appeal is that the trial court erred in determining that the law barring self-represented nonattorney litigants from recovering statutory attorney's fees also precludes a self-represented law firm from recovering contractual attorney's fees. The plaintiff argues that the portion of Jones relied on by the trial court is mere dictum. The plaintiff alternatively argues that we should overrule this portion of Jones because it is based on a ‘‘serious misinterpretation'' of Lev.[1] We disagree that the statement in Jones concerning self-represented attorney litigants is dictum and decline the plaintiff's invitation to revisit the issue.

         Preliminarily, we note that, because the plaintiff's appeal concerns the trial court's interpretation and application of the law to the undisputed facts of this case, our standard of review is plenary. See Thompson v. Orcutt, 257 Conn. 301, 308-309, 777 A.2d 670 (2001); Steroco, Inc. v. Szymanski, 166 Conn.App. 75, 87, 140 A.3d 1014 (2016). We now turn to an examination of this court's decision in Jones.

         Jones involved an action by the partners of a law firm against former clients to collect unpaid fees for services previously rendered. Jones v. Ippoliti, supra, 52 Conn.App. 200 n.2, 203. The plaintiffs alleged, inter alia, failure to pay a promissory note, and they sought attorney's fees for the prosecution of the collection action pursuant to a provision in the note that provided for ‘‘any costs and expenses, including reasonable attorney's . . . fees incurred in the collection of [the note] or in any litigation or controversy arising from or connected with [the note].'' (Internal quotation marks omitted.) Id., 202 n.5, 203. The trial court rendered judgment in favor of the plaintiffs on their complaint and awarded them attorney's fees pursuant to the promissory note for the services of their trial counsel, who had been retained by the plaintiffs. Id., 203 and n.7, 208. The court, ...

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