ROSENTHAL LAW FIRM, LLC v. JAMES COHEN
(AC 41028)
Appellate Court of Connecticut
May 28, 2019
Lavine, Elgo and Bear, Js.
The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
Syllabus
The plaintiff law firm sought to recover damages from the defendant, its former client, for breach of a retainer agreement for legal services in connection with a fee dispute with the defendant that had been resolved in the plaintiff‘s favor during arbitration proceedings. The plaintiff had filed an application to confirm the arbitration award with the trial court, which rendered judgment granting the application. Thereafter, this court affirmed the trial court‘s judgment, and our Supreme Court denied the defendant‘s petition for certification to appeal. R, the sole member of the plaintiff, represented the plaintiff throughout the arbitration proceedings and in the trial and appellate courts. The plaintiff subsequently brought the present action, claiming that the defendant, by refusing to pay for the legal services that it had rendered, had breached the parties’ retainer agreement, pursuant to which the parties had agreed that if 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. The plaintiff claimed that it had incurred $59,600 in legal fees in connection with R‘s representation of it in the arbitration and related court proceedings. The trial court rendered judgment in favor of the defendant, concluding that the plaintiff was not entitled to recover attorney‘s fees under the retainer agreement because it had effectively represented itself throughout the subject proceedings. In reaching its decision, the court relied on Jones v. Ippoliti (52 Conn. App. 199), in which this court extended to self-represented attorney litigants the rule adopted in Lev v. Lev (10 Conn. App. 570) barring self-represented litigants generally from recovering attorney‘s fees. On appeal to this court, the plaintiff claimed that the trial court erred in concluding that the plaintiff, as a self-represented law firm, was precluded from recovering attorney‘s fees, which was based on its claim that because the portion of Jones on which the court relied was dictum, the court improperly treated it as binding precedent. Held that the trial court did not err 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; this court‘s conclusion in Jones that self-represented attorney litigants cannot recover attorney‘s fees constituted an alternative holding and not dictum, as that conclusion could not reasonably be characterized as a merely casual, passing comment made without analysis or due consideration of conflicting authorities, and it was clear that this court made a deliberate decision to resolve the issue and that it undeniably decided it, and this court declined the plaintiff‘s request to overrule the portion of Jones at issue, which the plaintiff claimed was based on a misinterpretation of Lev, as this court was not at liberty to do so because it is axiomatic that one panel of this court cannot overrule the precedent established by a previous panel‘s holding.
Argued January 2-officially released May 28, 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.
James D. Cohen, self-represented, the appellee (defendant).
Opinion
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
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
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., 210.
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., 211. 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
The plaintiff in the present case appears to contend that, because the court in Jones determined that the plaintiffs had not been represented by their law firm, it was unnecessary for the court to consider whether the pro se nature of such representation would have precluded an award of attorney‘s fees pursuant to the general rule adopted in Lev. Thus, the plaintiff argues that this portion of Jones is dictum, and the trial court, therefore, erred in treating it as binding precedent. We disagree.
“[D]ictum is an observation or remark made by a judge in pronouncing an opinion upon a cause, concerning some rule, principle, or application of law, or the solution of a question suggested by the case at bar, but not necessarily involved in the case or essential to its determination . . . . Statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case . . . are obiter dicta, and lack the force of an adjudication.” (Internal quotation marks omitted.) U.S. Bank, N.A. v. Morawska, 165 Conn. App. 421, 427 n.4, 139 A.3d 747 (2016). The overwhelming weight of authority, however, recognizes a distinction between dicta and alternative holdings in an opinion. As the United States Supreme Court has explained, “where there are two grounds, upon either of which an appellate court may rest its decision, and it adopts both, the ruling on neither is obiter [dictum], but each is the judgment of the court, and of equal validity with the other.” (Internal quotation marks omitted.) United States v. Title Ins. & Trust Co., 265 U.S. 472, 486, 44 S. Ct. 621, 68 L. Ed. 1110 (1924).5 Cf. Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 420-21, 35 A.3d 188 (2012) (“Once it becomes clear that the trial court lacked subject matter jurisdiction to hear the plaintiffs’ complaint, any further discussion of the merits is pure dict[um]. . . . When the trial court concluded . . . that subject matter jurisdiction was missing, the remainder of its [ruling was] merely advisory . . . .” [Internal quotation marks omitted.]).
Although an alternative holding, by its very nature, is not strictly necessary to the disposition of the case, this does not render it dictum. On this point, we find the Utah Supreme Court‘s opinion in State v. Robertson, 438 P.3d 491 (Utah 2017), persuasive. “When we say that a holding is binding only when it is necessary, we do not mean that the holding must be the singular basis for our ultimate decision. Courts often confront cases raising multiple issues that could be dispositive, yet they find it appropriate to resolve several, in order to avoid repetition of errors on remand or provide guidance for future cases. Or, [courts] will occasionally find it appropriate to offer alternative rationales for the results they reach. Were we to require that a holding must be necessary in some strict, logical sense before it becomes binding precedent, then every time we articulated alternative bases for a decision we would convert our opinion into dicta, for none of the alternative bases are strictly necessary for the outcome. . . . Instead, necessary means only that the court undeniably decided the issue, not that it was unavoidable for it [to] do so. . . .”
“Of course, not every statement of law in every opinion is binding . . . . Where it is clear that a statement is made casually and without analysis, where the statement is uttered in passing without due consideration of the alternatives, or where it is merely a prelude to another legal issue that commands the [court‘s] full attention, it may be appropriate to re-visit the issue in a later case. . . . Where, on the other hand, it is clear that a majority of the [court] has focused on the legal issue presented by the case before it and made a deliberate decision to resolve the issue, that ruling becomes the law. . . .” (Footnotes omitted; internal quotation marks omitted.) Id., 502-503, quoting United States v. Johnson, 256 F.3d 895, 914-16 (9th Cir. 2001).
We now turn to the statement at issue in the present case. In Jones, both parties had raised and discussed in their appellate
We, therefore, disagree with the plaintiff that the trial court in the present case improperly treated this portion of Jones as binding precedent. Furthermore, although the plaintiff requests, in the alternative, that this panel revisit such precedent, we are not at liberty to do so.6 See In re Zoey H., 183 Conn. App. 327, 340 n.5, 192 A.3d 522 (2018) (“[I]t is axiomatic that one panel of this court cannot overrule the precedent established by a previous panel‘s holding. . . . This court often has stated that this court‘s policy dictates that one panel should not, on its own, reverse the ruling of a previous panel. The reversal may be accomplished only if the appeal is heard en banc.” [Internal quotation marks omitted.]), cert. denied, 330 Conn. 906, 192 A.3d 426 (2018).7
The plaintiff does not otherwise challenge the application of Jones to the present case, and, therefore, we need not address the propriety of the trial court‘s characterization of the plaintiff law firm—a legal entity distinct from Rosenthal—as a self-represented party. Indeed, when asked during oral argument before this court whether the plaintiff‘s status as a limited liability company affects the analysis of the issue raised in this appeal, Rosenthal replied, “I don‘t think so.” Similarly, we need not determine whether the plaintiff‘s status as a law firm litigant renders this case materially distinguishable from Jones, which involved attorney litigants. We note, however, that among the courts that have considered these issues in jurisdictions in which self-represented attorney litigants are barred from recovering attorney‘s fees, the majority agree that there is no meaningful distinction between solo practitioners who represent themselves and law firms that are represented by their own attorneys.8
The judgment is affirmed.
In this opinion the other judges concurred.