52 Conn. App. 199 | Conn. App. Ct. | 1999
Opinion
The defendants
The trial court found the following facts. In 1990, Edgardo Ippoliti, a shareholder of the defendant corporation, a masonry subcontractor, retained the plaintiffs to represent the defendant corporation in a dispute with Turner Construction Company, a general contractor,
I
THE APPEAL
Initially, we address the defendants’ claim that the public policy embodied in Canon 3 (c) of the Code of Judicial Conduct
During this discussion, the plaintiffs’ counsel urged that the defendants either move to recuse the trial judge or waive the alleged conflict in order to avoid that issue on appeal.
The defendants assert that the public policy embodied in Canon 3 (c) and § 51-5M does not confer rights on litigants but, instead, imposes duties on the judiciary and, thus, the defendants could not have waived the claim of actual bias of the trial court.
While we realize that both the original action and the appeal have a long history, the record in this hotly contested collection action is bare of any evidence substantiating allegations of judicial bias. In fact, the record
As to the remaining claims on appeal, the parties agree that they encompass a challenge to the trial court’s findings of facts. “Our role in reviewing an
The parties to this litigation presented the trial court with conflicting evidence. The trial court heard the witnesses, judged their credibility and, in its memorandum of decision, set out a full and thorough finding of facts, on which it based its verdict, and awarded relief. After a careful review of the whole record, we are satisfied
II
THE CROSS APPEAL
By their cross appeal, the plaintiffs seek to recover “in- house” counsel fees for the services they performed to assist their trial counsel. Specifically, the plaintiffs claim that attorneys and paralegals
Neither our Supreme Court nor this court has ruled on the propriety of an award of attorney’s fees to in-house counsel who themselves are plaintiffs in the underlying action. The plaintiffs insist that the services Pepe and Hazard provided arise naturally and generally
In opposition, the defendants place before us a number of cases in which courts have denied an award of attorney’s fees to plaintiffs who are attorneys appearing on their own behalf.
To begin our analysis, we must determine whether Pepe and Hazard and in-house counsel are synonymous. The plaintiffs identify and describe themselves at paragraph one of their amended complaint: “Plaintiffs . . . are attorneys at law duly licensed to practice law in the state of Connecticut and in good standing; the plaintiffs practice law under the name and style of Pepe & Hazard .. . .”
We now look to the accepted definitions of attorney and in-house counsel. “Attorney. In the most general
The next question is whether Pepe and Hazard functioned as an attorney in this matter. To begin with, we note that Pepe and Hazard did not enter an appearance on behalf of the plaintiffs in this matter. “Except by leave of the judicial authority, no attorney shall be permitted to appear1 in court or to be heard in behalf of a
Even if we were to conclude otherwise, i.e., that Pepe and Hazard 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. See Lev v. Lev, 10 Conn. App. 570, 575, 524 A.2d 674 (1987). Therefore, the plaintiffs were not entitled to attorney’s fees for the services provided by Pepe and Hazard, and the trial court properly denied the plaintiffs’ request for them.
The judgment is affirmed.
In this opinion the other judges concurred.
The defendants are Edgardo Ippoliti and Eppoliti, Inc. (the defendant corporation). Eppoliti Enterprises, Inc., was originally named as a defendant but claims against it have been withdrawn. Any reference to the defendants, therefore, includes only Edgardo Ippoliti and Eppoliti, Inc.
The plaintiffs, partners in the law firm of Pepe and Hazard, are Richard D. Jones, Stephen B. Hazard, Louis R. Pepe, James A. Thompson, Ann P. Bird, Kathleen Bomhorst, James G. Green, Jr., Robert C. Hunt, Jr., Thomas G. Librizzi, David E. Rosengren, Walter W. Simmers, Michael A. Zizka, James C. Graham, James Mercier and Jeanine M. Dumont.
See General Statutes § 42-110b (a) et seq.
“Legal contentions, like the currency, depreciate through over-issue. The mind oí an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one [issue . . . Multiplying assignments of error will dilute and weaken a good case and will not save a bad one. . . . Most cases present only one, two, or three significant questions. . . . Usually ... if you cannot win on a few major points, the others are not likely to help. . . . The effect of adding weak arguments will be to dilute the force of the stronger ones. . . . State v. Pelletier, 209 Conn. 564, 567, 552 A.2d 805 (1989).” (Internal quotation marks omitted.) State v. Cruz, 40 Conn. App. 515, 525-26, 672 A.2d 502, cert. denied, 237 Conn. 909, 675 A.2d 457 (1996).
At oral argument before this court, the defendants introduced arguments that were not presented in their briefs. This court will not consider arguments that are not presented in the briefs. See Shew v. Freedom of Information Commission, 245 Conn 149, 166 n.20, 714 A.2d 664 (1998). In Shew, the court refused to consider an argument presented by the plaintiff for the first time at oral argument because the claim was not briefed by either party. Id.; see also New Haven Firebird Society v. Board of Fire Commissioners, 32 Conn. App. 585, 591, 630 A.2d 131, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993), citing State v. Marra, 222 Conn. 506, 536 n.16, 610 A.2d 1113 (1992); Latham & Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 300, 589 A.2d 337 (1991).
The note provided for “any costs and expenses, including reasonable attorney’s . . . fees incurred in the collection of this Note or in any litigation or controversy arising from or connected with this Note.”
This is evidenced by the following colloquy between the plaintiffs’ counsel and the defendant Ippoliti during trial:
“Q. And you made a payment of $2000 a month for a few months [on the bills], didn’t you?
“A. That’s correct.
“Q. That was when the appeal was pending that Mr. Pepe had to defend?
“A. Yes.
* * *
“Q. And you were continuing to have him do work on the Turner matter as well as other matters while the case was pending the appeal.
“A. That’s correct.
:]; * *
“Q. And did you continue to make promises to [Mr. Pepe] that you’d make sure he got paid . . . ?
“A. I told Mr. Pepe that he was going to get paid.
* * *
“Q. You reached an understanding to pay Mr. Pepe’s law firm $85,000 to discount the outstanding account receivable, didn’t you?
“A. I reached an understanding with Mr. Pepe to pay him $85,000.
“Q. And did you ever pay him that [amount]?
“A. I was more than willing to pay him.
“Q. Have you paid him today?
“A. No. I have not.”
The judgment reflects that the trial court awarded the plaintiffs damages in the amount of $155,882.28, offer of judgment interest in the amount of $56,890.97 and attorney’s fees of $163,134.80.
Canon 3 (c) of the Code of Judicial Conduct provides in relevant part: “Disqualification. (1) A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned
The defendants erroneously cite General Statutes § 50-51Í in their statement of issues, but do correctly cite General Statutes § 51-51Í (a) (2) in their argument and it is in their appendix. General Statutes § 51-Sli (a) provides in relevant part: “In addition to removal by impeachment and removal by the Governor on the address of two-thirds of each house of the General Assembly as provided in the Connecticut Constitution, a judge shall be subject, in the manner and under the procedures provided in this chapter to censure, suspension or removal from office for ... (2) wilful violation of section 5l-39a or any canon of judicial ethics . . . .”
The following colloquy took place during trial:
“The Court: Well, first of all, let me just malee this point. I think I made it before. I used to represent American Mason Supply. Not on this case, this came up after I went on the bench, but the owner of American Mason is a close friend of mine. Does anybody see any problem with that. I don’t—
“[Defense Counsel]: Yes, I do.”
The attorney for the plaintiffs stated: “Your Honor, before we go any further just because in any event of an appeal, I don’t want to be blindsided any more so than I think the court wants to be. The problem [the defendants’ counsel is] raising now is either going to be the subject matter of what I can just see down the road of the judge should have recused himself, or [the defendants’ counsel is] going to say, he’s not going to press such a claim, but let’s try not to be blindsided by something that’s done later, and I would respectfully ask the court to determine from [the defendants’ counsel] if he’s making a claim that you should be subject to some recusal
We note that the defendants never raised this issue at trial but instead held that arrow in their appellate quiver, while reaping the benefit of a full trial. We may invoke our supervisory authority to review a claim that was not raised at trial where we deem it appropriate given the nature and significance of the issue. See West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 507, 636 A.2d 1342 (1994).
This matter does not require us to determine whether fees for services performed by paralegals may be claimed as attorney’s fees. But see General Statutes § 42-110g (d) at footnote 15.
In support of their claim, the plaintiffs cite Pittsburgh Plate Glass Co. v. Fidelity & Casualty Co. of New York, 281 F.2d 538, 542 (3d Cir. 1960) (attorney’s fees awarded for services provided by insurance company’s in-house counsel); Central States, Southeast & Southwest Areas Pension Fund v. Central Cartage Co., 76 F.3d 114, 115 (7th Cir.), cert. denied sub nom. Mason & Dixon Lines, Inc. v. Central States, Southeast & Southwest Areas Pension Fund, 519 U.S. 811, 117 S. Ct. 56, 136 L. Ed. 2d 19 (1996) (motion concerning cost sharing of fees and rate at which services of staff counsel should be reimbursed); B-E-C-K Constructors v. Dept. of Highways, 604 P.2d 578, 585 (Alaska 1979) (state awarded attorney’s fees for services of outside counsel, as well as for staff attorney general); Travelers Ins. Co. v. State Ins. Fund, 155 Misc.2d 542, 546, 588 N.Y.S.2d 973 (Ct. Cl. 1992) (attorney’s fees for services of in-house counsel pursuant to agreement of coinsurers to share cost of defense), aff'd 227 App. Div. 2d 208, 642 N.Y.S.2d 867 (1996); Metropolitan Mortgage & Securities Co. v. Becker, 64 Wash. App. 626, 632-34, 825 P.2d 360 (1992) (no prohibition against attorney’s fees for in-house counsel).
General Statutes § 42-110g (d) provides in relevant part: “In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery. ...”
Connor v. Cal-Az Properties, Inc., 137 Ariz. 53, 55-56, 668 P.2d 896 (1983); O’Connell v. Zimmerman, 157 Cal. App. 2d 330, 336-37, 321 P.2d 161 (1958); Sessions, Fishman, Rosenson, Boisfontaine & Nathan v. Taddonio, 490 So. 2d 526, 527 (La. App. 1986).
This case does not require us to determine whether, in the appropriate circumstances, a plaint iff may be entitled to attorney’s fees for the services that in-house counsel provides to outside counsel during the course of litigation. We leave that issue for another day.