RULING ON POST-TRIAL MOTIONS (Doc. # 65, 70 and 71)
I. INTRODUCTION
Plaintiff Aldo Lorenzetti brought this action against his former attorney, Joel M. Jolles, claiming that Jolles committed legal malpractice when he settled Lorenzetti’s case against Fleet Bank without Mr. Lor-enzetti’s consent to do so. The jury found that Mr. Jolles had committed malpractice by settling Mr. Lorenzetti’s case against the Bank and allowing judgment to enter, all without Mr. Lorenzetti’s authorization. The jury then went on to determine whether Mr. Lorenzetti would have been successful in the underlying action, but for Mr. Jolles’ unauthorized settlement, and found that Mr. Lorenzetti would have prevailed on his CUTPA claim against the Bank, although not on his breach of contract and breach of fiduciary duty claims. The jury awarded damages in the amount of $225,000, and defendant filed motions for a new trial (Doc. # 65) and for judgment as a matter of law (Doc. # 64).
II. Factual Background
Viewing all disputed facts as decided in the plaintiffs favor, as the Court is required to do at this juncture,
see Doctor’s Assoc., Inc. v. Weible,
On June 30, 1993 Mr. Lorenzetti, originally represented by Attorney John Rose, commenced suit against Fleet Bank, as the successor to CNB and Shawmut (the “Bank litigation”). The claims were for breach of contract, breach of fiduciary duty, breach of the covenant of good faith and fair dealing, misrepresentation, and CUTPA violations based on the Bank’s failure to provide the promised loan funds. That case was removed to federal court based on diversity of the parties, and Fleet counterclaimed against Mr. Lorenzetti seeking collection of a $100,000 debt allegedly owed by Mr. Lorenzetti. Mr. Rose eventually withdrew from the ease, due to a conflict at his firm, and Mr. Jolles filed an appearance on behalf of Mr. Lorenzetti. On the day of jury selection in the Bank litigation, Mr. Jolles and Bank counsel Ben Krowicki entered a verbal settlement agreement into the record, although the agreement was never reduced to writing. The settlement, which became an official judgment thirty days later when no motions to reopen were filed, provided that Mr. Lorenzetti would drop his claims against the bank, and pay $100,000 on the counterclaim to the Bank.
Mr. Lorenzetti claimed that Mr. Jolles mishandled the Bank litigation, in that he entered into a settlement and allowed judgment to enter against Mr. Lorenzetti without his permission. He brought suit against Mr. Jolles for legal malpractice, and the case was tried to a jury from October 18 until October 26, 1999. The jury found that Attorney Jolles had committed malpractice by settling Mr. Loren-zetti’s case without his permission, and went on to decide whether Mr. Lorenzetti would have prevailed on his underlying claims against the Bank. While the jury found that Mr. McCarthy owed a fiduciary obligation to Mr. Lorenzetti, it determined that he had not breached that obligation, nor had the Bank breached any contractual obligations to Lorenzetti. The jury did find that the Bank had committed an unfair or deceptive trade practice and had therefore violated CUTPA when it promised to provide the loan funds and then later reneged on that agreement, and in
The jury awarded $225,000 in damages for the CUTPA violation, and defendant moved for a new trial and for judgment as a matter of law. Specifically, in his motion for judgment as a matter of law, defendant contends that 1) since the jury found no fiduciary breach and no breach of contract, there can be no CUTPA violation; 2) the evidence presented did not provide sufficient basis for the jury to find an ascertainable loss, a necessary threshold for a CUTPA claim; 3) as there was no right to a jury trial at the time of the underlying litigation, the Court should have decided the CUTPA claim rather than the jury; and 4) there was insufficient evidence to establish a CUTPA claim against the Bank. Defendant’s motion for a new trial is premised on the arguments that the damages awarded by the jury were excessive, and that plaintiff presented insufficient evidence to establish a CUTPA violation by the Bank.
III. Procedural Background
Following the jury’s verdict on October 18, 1999, the Court set a simultaneous briefing deadline of November 12, 1999 to address the issues raised by the defendant in the current motions. Defendant Jolles filed his motions for judgment as a matter of law and for a new trial on November 5, 1999. The Court denied these motions for failure to comply with District of Connecticut Local Rule 9(a)(1), which requires an accompanying memorandum in support be filed with each motion. Jolles has subsequently moved for reconsideration of these rulings, explaining thát counsel for the defendant received the judgment dated November 1, 1999, and was unclear as to whether the briefs were to be filed by the date set by the Court or within the ten days set out in Federal Rule of Civil Procedure 59(b). Out of an abundance of caution, defendant apparently filed his motion within the ten days required by the Federal Rules, and submitted his briefs in support on November 12,1999.
The Second Circuit has stated that reconsideration is appropriate only under certain conditions: an intervening change in controlling law, new evidence, or the need to correct a clear error of law or to prevent manifest injustice.
See United States v. Sanchez,
Even under these strictures, the Court determines that reconsideration is appropriate in the present circumstances. Although counsel could have resolved any seeming inconsistencies between the two deadlines by filing his motion and accompanying memorandum within the ten days allowed in Rule 59(b), his excuse is not unwarranted. Recently the Second Circuit saw fit to remind the bar, and presumably the bench, that “the individual practice rules of a district judge must be read in conjunction with the Federal Rules of Civil Procedure and that the Federal Rules and their jurisdictional filing dates supersede any seemingly contrary district court practice rule.”
Fruit of the Loom, Inc. v. American Marketing Enterprises,
A. Standard
On a motion for judgment as a matter of law pursuant to Rule 50(b), a district court may grant a motion for judgment as a matter of law only if:
there exists “such complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture,” or the evidence in favor of the movant is so overwhelming “that reasonable and fair minded [persons] could not arrive at a verdict against [it].”
Luciano v. The Olsten Corp.,
Defendant Jolles also moves for a new trial under Rule 59, which gives a federal judge authority to grant a new trial on the grounds that the verdict was against the weight of the evidence. “It is well-settled that Rule 59 is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a ‘second bite at the apple’ ...”
Sequa Corp. v. GBJ Corp.,
B. Defendant’s Motion for Judgment as a Matter of Law
The focus of defendant’s argument in this motion is on the alleged inconsistency between the jury’s verdict on the fiduciary and contract claims and its verdict on the CUTPA claim. According to defendant, the jury’s finding that the Bank did not breach any fiduciary obligations to Lorenzetti necessarily dictates that there can be no CUTPA violation, because the CUTPA claim is simply a “recasting” of the allegations in the count alleging fiduciary violations. Defendant provides no cases that directly support his position, and instead extracts one sentence from the Connecticut Supreme Court’s opinion in
Ostrowski v. Avery,
if the retrial results in findings of violations of fiduciary duty, the question remains whether such misconduct constitutes an unfair and deceptive trade practice within the meaning of CUTPA.
Id.
at 378,
Because CUTPA is a self-avowed remedial statute,
see
Conn.Gen.Stat. 42-110b(d), it is construed liberally in order to effectuate its public policy goals of protecting consumers.
Sportsmen’s Boating Corp. v.
Given these legal principles, the Court is persuaded that plaintiff presented sufficient evidence to support the jury’s verdict on the CUTPA claim, even if no fiduciary violation or breach of contract was found. The jury was instructed on the appropriate legal standards for determining whether a practice was unfair or deceptive. The jury heard testimony that Robert McCarthy made repeated promises to Mr. Lorenzetti that the money was forthcoming, and that Mr. Lorenzetti relied on those promises from his “personal banker” and did not seek alternate funding sources. The jury could have found that when faced with scrutiny by banking regulators, CNB then classified Lorenzetti’s loans, foreclosed on the Montauk Road property, and imposed overcharges and an .improper interest rate on Lorenzetti as part of the foreclosure, all without any warning to Mr. Lorenzetti and without justification. Although Mr. McCarthy may not have breached his obligations as a fiduciary in doing so, the interests protected by fiduciary duties and the CUTPA statute are not necessarily congruent such that a finding of no fiduciary breach necessarily negates the finding of a CUTPA violation. Based on the above facts, the jury could have concluded that while Mr. McCarthy met his fiduciary obligations as a bank officer generally, his personal relationship and specific history with Mr. Lor-enzetti was such that the Bank’s abrupt reversal of position, without any warning, constituted deceptive, oppressive or unscrupulous conduct which caused substantial injury to consumers. Defendant’s motion for judgment as a matter of law on these grounds is therefore denied.
Defendant also contends that plaintiff failed to establish an “ascertainable loss” as a result of any CUTPA violation of the Bank, because Mr. Lorenzetti failed to establish that he would have been able to purchase the Daniels property even if he had received the necessary funds from the Bank. “The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief.”
Service Road Corp. v. Quinn,
Defendant argues Mr. Lorenzetti presented insufficient evidence that Ms.
Contrary to defendant’s argument, the jury could have found that Lorenzetti would have been able to purchase the property had the Bank fulfilled its promises to him. Lorenzetti testified that his original agreement with Ms. Simpson was to purchase the property for $65,000; after a five or six month delay on the Bank’s part, she became “antsy,” according to Mr. Lorenzetti, and sent him a letter rescinding the $65,000 purchase price and offering the property at $125,000 instead. The plaintiff testified that he still would have purchased the property at that price, and that based on his conversations with Ms. Simpson, he still could have obtained the property for $125,000 up until March of 1991. The fact that the property ultimately sold in August of that year for only $5,000 over the agreed-upon price with Lorenzetti provides further support for this view. Def.Ex. 9. The jury believed plaintiffs testimony on this point, which they were entitled to do. The jury was also entitled to credit plaintiffs testimony that the lease and the appraisal were not formal requirements of the Bank, but were instead suggested by Mr. McCarthy as a way of expediting the processing of the loan. Plaintiff testified without contradiction by defendant that on numerous previous occasions he had requested and received loans from the Bank without formal application, appraisals, or any supporting documentation. The January 1991 date thus does not have the dispositive significance defendant assigns it such that the purchase price of the property should only be measured as of that date.
While reasonable minds could certainly differ on the conclusions to draw from the evidence in the record, defendant has not demonstrated that the jury’s verdict is so against the weight of the evidence that it could only be the result of surmise or conjecture. The evidence presented by the plaintiff was sufficient to demonstrate that he suffered an ascertainable loss as required by CUTPA, even if the actual amount of this loss was not proved with precision. Defendant’s motion on these grounds is therefore denied.
Finally, defendant argues that the CUT-PA claim should not have been tried to the jury, because at the time of the underlying litigation against the Bank there was no right to a jury trial for CUTPA violations. Defendant makes an intricate argument regarding the effective date of Public Act No. 95-123, which amended Conn.Gen. Stat. 42-110g to provide a right to a trial by jury in CUTPA actions, overturning in part Williams Associates IV, see discussion supra at 185-86. According to defendant, this case was set down for trial during the short period of time in which Williams Associates IV still controlled, and therefore the underlying litigation would have been decided by a judge rather than a jury.
Defendant overlooks two central facts in reaching his conclusion, however. First, even before the statute was amended, federal and state courts could, on the application of either party, order any issue of fact arising under CUTPA to be tried by a jury.
Williams Associates IV,
C. Defendant’s Motion for a New Trial
Defendant also seeks a new trial, arguing that the jury was improperly instructed on damages; that there was insufficient evidence to demonstrate a CUTPA violation; that there was insufficient evidence of an ascertainable loss; and that the award of damages was excessive. Doc. # 65. Defendant’s motion for a new trial on grounds of insufficient evidence for the CUTPA violation and ascertainable loss duplicate his arguments in his motion for judgment as a matter of law, and for the reasons outlined above the motion is denied.
While captioned as an excessiveness argument, defendant’s brief makes clear his contention that a new trial is warranted on grounds that plaintiff failed to demonstrate that he would have been able to purchase the property in January of 1991 had the bank furnished the funds as promised. As discussed above, however, the plaintiffs evidence was sufficient for the jury to conclude that Mrs. Simpson would have gone through with the sale for $125,000 in March of 1991, and that January of 1991 was not the relevant measuring point for determining the likelihood of the sale.
Defendant makes an additional argument that since Mr. Lorenzetti failed to prove that would have been able to get the funds from another bank had he been advised that CNB was not making the loan, he failed to prove that his damages were the result of the bank’s actions. This argument, however, was not the subject of defendant’s Rule 50(a) motion at the close of plaintiffs case, and could thus be denied on this ground.
See Holmes v. United States,
Finally, defendant challenges the Court’s charge to the jury on the damages, claiming that it “allowed the jury to ascertain damages not allowed under the law.” Doc. # 65. Defendant’s brief does not address this contention, and the Court is therefore unable to ascertain which aspect' of the damages charge defendant believes is contrary to the law.
In its charge on the damages recoverable under CUTPA, the Court instructed the jury that Mr. Lorenzetti bore the burden of proof, and that it could only award damages for those losses which Mr. Loren-zetti had proven that he actually suffered
The jury instruction properly informed the jury of the plaintiffs burden in proving damages and the measure of damages under CUTPA. As defendant does not dispute the general principle that the measure of damages in a malpractice action is the value of the lost claim,
D. Attorney’s Fees
Plaintiff seeks an evidentiary hearing on the amount of attorney’s fees that should be awarded to him for his successful prosecution of his claim. Under the American rule, adhered to in Connecticut, attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception.
24 Leggett Street Limited Partnership v. Beacon Industries, Inc.,
The plaintiff cites to no Connecticut case addressing this issue, nor can the Court locate such precedent.
2
Several courts have allowed attorney’s fees as part of the recovery in legal malpractice claims, under the theory that such fees are necessary to place the plaintiff in the same position he would have been in had the attorney not breached the applicable standard of care.
See Foster v. Duggin,
In a legal malpractice case involving an underlying claim of employment discrimination, the Supreme Court of Wisconsin held that the plaintiff was entitled to attorney’s fees for that portion of her counsel’s work related to the underlying discrimination claim.
Glamann v. St. Paul Fire and Marine Ins. Co.,
Glamann’s
reasoning is equally applicable to the present case. CUTPA provides for attorney’s fees as a way of effectuating the statute’s policy goal of protecting consumers, to encourage litigants to act as private attorneys general.
See Gill v. Petrazzuoli Bros., Inc.,
Defendant also seeks to limit the scope of an attorney’s fees award, arguing that Mr. Lorenzetti is only entitled to the few thousand dollars he paid Mr. Jolles in retainer. He cites no Connecticut authority in support of this contention, and as the Court concluded above, the plaintiff should be entitled to recover the full amount he would have received in the underlying case, had it gone to trial. To the extent defendant suggests that the Court should separate out the fees incurred in prosecuting the underlying CUTPA claim from the underlying breach of contract and fiduciary duty claims, as Mr. Lorenzetti did not prevail on these claims at his malpractice trial, the Court is unpersuaded. The successful and unsuccessful underlying claims were inextricably intertwined, as they involved a common core of facts and were proved by the same evidence. The Court may therefore award fees for the prosecution of the entire underlying case, even though the jury did not find in Mr. Loren-zetti’s favor on all his claims in the underlying case against the Bank.
See Reed v. A.W. Lawrence & Co., Inc.,
The plaintiff will therefore file a properly documented fee petition consistent with the foregoing and with
New York State Assoc. for Retarded Children v. Carey,
V. CONCLUSION
Defendant’s motions to reconsider the Court’s previous rulings on his post-trial motions (Doc. # 70 and Doc. # 71) are GRANTED. Upon reconsideration, for
IT IS SO ORDERED.
Notes
. Plaintiffs request for attorney’s fees was not docketed as a motion; rather, it appears in his Post-Trial Brief (Doc. # 68), which was submitted in accordance with the schedule set by the Court after the jury verdict was rendered on October 28, 1999. Plaintiff has subsequently filed a Preliminary Memorandum of Law in Support of Plaintiffs Motion for Hearing on Attorney’s Fees (Doc. # 74), but no motion accompanied the brief.
. The Second Circuit affirmed a district court’s decision denying attorney's fees in
Banker v. Nighswander, Martin & Mitchell,