Rosenthal Law Firm, LLC v. Cohen

190 Conn.App. 284

210 A.3d 579

ROSENTHAL LAW FIRM, LLC

v.James COHEN

AC 41028

Appellate Court of Connecticut.

Argued January 2, 2019

Officially released May 28, 2019

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. at 200 n.2, 203, 727 A.2d 713. 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., at 202 n.5, 203, 727 A.2d 713. 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., at 203 and n.7, 208, 727 A.2d 713. The court, however, denied their claim for attorney's fees based on the services rendered by the attorneys and paralegals employed by the plaintiffs' law firm in assisting their trial counsel in the prosecution of the collection action. Id., at 208, 727 A.2d 713.

On appeal, the plaintiffs in Jones claimed that they were entitled "to recover ‘in-house’ counsel fees for the services they performed to assist their trial counsel." Id. In support of this claim, "[t]he plaintiffs urge[d] [this court] to adopt what they claim[ed] to be a trend in other jurisdictions to award reasonable attorney's fees for both outside counsel, as well as in-house counsel, who participate in the prosecution of a claim in which attorney's fees can be awarded." (Footnote omitted.) Id. According to the plaintiffs, "an award to the successful litigant of reasonable attorney's fees for the services [the plaintiffs' law firm] provided [was] appropriate because the time devoted to this case was time not available for other work." Id., at 210, 727 A.2d 713.

Citing a number of out-of-state cases in which courts denied an award of attorney's fees to attorney litigants appearing on their own behalf,² the defendants countered that, "if plaintiff-attorneys representing themselves are not entitled to an award of attorney's fees, then, a fortiori, plaintiff-attorneys who merely assist their trial counsel, for whose services they have received an award of attorney's fees, are not entitled to an award of attorney's fees for their own services." Id. The court deemed this distinction to be significant. Id.

The court in Jones began its analysis of the plaintiffs' claim by first considering "whether [the plaintiffs' law firm] and in-house counsel [were] synonymous." Id. The court determined that, "[b]y definition, the plaintiffs [were] not in-house counsel because they [were] not employees of a business whose function is to advise the business on day-to-day matters." Id., at 211, 727 A.2d 713. The court therefore concluded that "the cases cited by the plaintiffs in support of their claim that the trial court should have awarded them attorney's fees for the services performed by [the plaintiffs' law firm were] factually distinguishable in that attorney's fees in those cases [had been] awarded for the work done by in-house counsel in businesses such as insurance companies." Id.³

The court next considered "whether [the plaintiffs' law firm had] functioned as an attorney in [the collection action]."⁴ Id. "To begin with, [the court] note[d] that [the plaintiffs' law firm had] not enter[ed] an appearance on behalf of the plaintiffs" and that, accordingly, "it did not represent them in this action." Id., at 211–12, 727 A.2d 713 ; see Practice Book § 3-7 (a) ("[e]xcept by leave of the judicial authority, no attorney shall be permitted to appear in court or to be heard on behalf of a party until the attorney's appearance has been entered"). The court further determined that "[e]ven if [it] were to conclude otherwise, i.e., that [the plaintiffs' law firm had] represented the plaintiffs, such representation would have been of a pro se nature. The law of this state is that pro se litigants are not entitled to attorney's fees." Jones v. Ippoliti , supra, 52 Conn. App. at 212, 727 A.2d 713, citing Lev v. Lev , supra, 10 Conn. App. at 575, 524 A.2d 674. The court therefore held that "the plaintiffs [had] not [been] entitled to attorney's fees for the services provided by [the plaintiffs' law firm] and the trial court [had] properly denied the plaintiffs' request for them." Id.

The plaintiff in the present case appears to contend that, because the court in Jones...