6 Conn. App. 292 | Conn. App. Ct. | 1986
This appeal by the pro se defendant, Carol C. Johnson, arises out of an action instituted by the plaintiff, Irving H. Perlmutter,
The trial court concluded that Perlmutter’s claims were based on a theory of quantum meruit and awarded Perlmutter a total of $4574.06, representing a reasonable fee for Perlmutter’s services in the two cases plus his disbursements. The figure was significantly less than Perlmutter had sought. The court declined to award Perlmutter interest.
Johnson has raised several claims of error, only five of which we will discuss here.
Johnson has made claims of error pertaining to the decision of the trial judge, Levine, J., denying two motions to recuse himself from sitting on this case. The first of these motions was based on Johnson’s claims (1) that “issues involved herein are under consideration by the Appellate Court,”
Proof of actual bias on the part of the court is not required to demonstrate that the trial judge should have disqualified himself. Cameron v. Cameron, 187 Conn. 163, 170, 444 A.2d 915 (1982). Rather, the appearance of impropriety is as important as the reality where the court is concerned. Id.
Finally, with respect to Johnson’s claim that the judge inquired as to Perlmutter’s use of a cane, and as to his wife’s health, the mere fact that he inquired into Perlmutter’s use of a cane, while indicative of a prior acquaintance with Perlmutter, is not a showing of bias in any way. Perlmutter is a practicing attorney and Johnson, as an attorney himself, could not reasonably have expected that Perlmutter would be unknown to the judges of the Connecticut courts. Such prior professional dealings, however, do not demonstrate a personal bias in favor of Perlmutter.
It should also be noted that Johnson was notified three weeks prior to trial that the case would be heard by Judge Levine. He failed to move for disqualification until the date of trial and, even then, he failed to apprise Judge Levine of his objections during a conference in chambers just prior to the commencement of trial. Under these circumstances, we conclude that the court was correct in denying Johnson’s motion.
Johnson’s second claim of error regarding disqualification is that Judge Levine engaged in a hushed conversation with opposing counsel at the bench when he knew that Johnson was hard of hearing. Johnson further claims that he demanded to know what the conversation was about, but that Judge Levine refused to say, stating only to the plaintiff that “I may want you to amend your complaint.” Unfortunately, we can find no evidence of such a verbal exchange in the transcript of the case. Neither Johnson’s brief nor his reply brief refer to any pages in the transcript demonstrating that Johnson made any objection to Judge Levine in this regard, nor does the appendix to his reply brief, which contains copies of seventy-two randomly selected transcript pages, provide us with any evidence of such an objection. We therefore decline to consider this claim.
Both Perlmutter and Johnson have claimed error in the court’s decision to award damages based on the theory of quantum meruit.
The trial court concluded that the allegations of Perlmutter’s complaint
Practice Book § 193 permits the plaintiff to recover a price different from that alleged “if the proof fails to establish the price alleged.” In the present case, however, the proof was uncontradicted regarding the price to which the parties agreed. Thus, their agreed price was established and was the only price in evidence before the court. The court, therefore, erred in finding that any other rate of payment was appropriate.
Johnson’s final claim relates to the court’s error “in not condemning” Perlmutter for retaining $2391.66 paid to him by the Branford board of zoning appeals, which amount represented reimbursement of taxable costs due Johnson in a prior matter. This claim is also without merit.
Perlmutter never used those funds. Rather, he disclosed their existence to both Johnson and the court when his complaint was filed and stated that those funds were being held in escrow pending a final determination of his rights thereto. He further stated that he had notified Johnson when he received the funds. Under these circumstances, we conclude that Perlmutter correctly placed these funds in escrow and that he was not to be condemned for such action. See Code of Professional Responsibility, Disciplinary Rule 9-102 (a). We further note that the court was correct in permitting Perlmutter to keep these funds as an offset. It has long been held that an attorney has “an equitable lien upon the avails [of his actions for a client] for the services and expenses in the suit.” Cooke v. Thresher, 51 Conn. 105, 107 (1883). In the present case, Perlmutter’s undisputed testimony was that he obtained the funds on Johnson’s behalf as a result of an action which he undertook as Johnson’s attorney. He, therefore, had a lien upon those funds.
Perlmutter’s cross appeal raises one final claim, namely, that the court erred in failing to award him interest, as damages on his award. See General Statutes § 37-3a. Such an award is a matter which is within the discretion of the trial court. Sperry v. Moler, 3
There is no error on the appeal. There is error on the cross appeal, the judgment is set aside and the case is remanded for a hearing limited to the issue of the number of hours which Perlmutter expended in connection with his efforts on behalf of Johnson; upon a determination of that number of hours, judgment is to be rendered for Perlmutter in the agreed amount of sixty-five dollars multiplied by the number of hours so found, plus disbursements, less a setoff for Johnson’s funds held by Perlmutter in his clients’ funds account.
The plaintiff has also filed a cross appeal which will be discussed herein.
See Johnson v. Fuller, 190 Conn. 552, 461 A.2d 988 (1983); Johnson v. Zoning Board of Appeals of Branford, 2 Conn. App. 24, 475 A.2d 339, cert. denied, 194 Conn. 806, 482 A.2d 711 (1984), cert. denied, 471 U.S. 1066, 105 S. Ct. 2141, 85 L. Ed. 2d 498 (1985). The facts of those cases are adequately set forth therein.
The remainder of Johnson’s claimed errors constitute an attempt to dispute the factual findings of the trial court. We will not upset those findings. Practice Book § 3060D.
Only three of those claims were briefed. We therefore deem the remainder to have been abandoned. Practice Book § 3060F (a).
The “issues” of which Johnson spoke were involved in the appeal by Johnson of one of the cases for which Perlmutter’s fee was in dispute. It should be obvious that an appeal of which the court was unaware until Johnson mentioned it, and which did not involve a ruling made by Judge Levine, could have little bearing on the court’s impartiality.
Ironically, Johnson asserts that the court established a $100 per hour rate pursuant to its use of the quantum meruit theory while Perlmutter
Paragraph one of the complaint stated that the parties had an agreement regarding “reasonable fees.” Paragraph two stated a total amount due in accordance with that agreement. No hourly rate was alleged.