Opinion
Thе defendant, Frank Hastings, appeals from the judgment of foreclosure by sale rendered by the trial court in favor of the plaintiff, Walter Twacht-man, Jr., on a mortgage Hastings gave to Twachtman. The mortgage secured a note for payment for professional services by Twachtman to Hastings in vаrious legal matters from 1986 to 1990. On appeal, Hastings claims that (1) the trial court improperly failed to apply the standards set out in Konover Development Corp. v. Zeller, 228 Com. 206,
The facts are substantially undisputed and may be summarized as follows. From February 5, 1986, mtil May, 1989, Twachtman represented Hastings in various legal proceedings. The parties’ initial retainer agreement, signed on February 5, 1986, provided, inter aha, that Hastings would be billed for services at an hourly rate of $95. The parties understood that the bill would be paid in fuh at the successful conclusion of the legal proceedings, specifically at the conclusion of a lawsuit undertaken to enforce a judgment in favor of Hastings against Arthur Normand in a prior lawsuit (Normand I), which involved an option agreement to purchase сertain property. Because the postjudgment
On October 6,1988, prior to the Normand II decision, the parties entered into a letter agreement, recognizing that the total unpaid legal fees rendered and billed through July, 1988, were $32,644.52, which included $24,644 for Twachtman’s services in Normand II, and that Twachtman “was entitled to an attorney’s lien [for the total amount due] against the funds in [Twacht-man’s] possession and collected on [Hastings’] behalf.” The parties agreed to a compromise whereby $15,000 would be paid to Twachtman from proceeds acquired as a result of separate legal proceedings, which Twacht-man was holding on Hastings’ behalf, and the remainder of the proceeds would be paid to Hastings. The balance of unpaid legal fees, $17,644.52, was to be secured by a mortgage and note at 8 percent interest. Twachtman agreed not to demand payment on the note until the Normand II appeal was resolved. Hastings signed the agreement, which included a statement that Hastings had read the terms of the agreement and understood and accepted those terms.
At the conclusion of Normand II, Hastings experienced difficulty obtaining financing for the purchase of the Normand property and, thereafter, Twachtman and Hastings entered into another letter agreement in Septеmber, 1989. As a result, Hastings paid $10,000 toward Twachtman’s billings of $34,895.25. The balance was secured by a mortgage and note at 15 percent interest,
Not until December 6,1989, in a letter to Twachtman, did Hastings express any dissatisfaction with the quality of Twachtman’s services and the amount of his legal fees. Thereafter, Twachtman, believing that Hastings’ dissatisfaction was a ruse to avoid payment of the bill and that Hastings did not intend to pay the balance due, gave Hastings notice that he would file the mortgage on the land records within ten days in accordance with the agreement between the parties. Twachtman also advised Hastings that because they were now in an adversarial position, he could not represent Hastings in the only remaining active file. In a letter dated February 6, 1990, however, Hastings proposed that Twacht-man manage the appeal in that case, a class action suit in which Hastings was one of the plaintiffs, and proposed a separate retainer agreement for a fee of not more than $6000 to be sеcured by a mortgage on two of the lots purchased at the Normand closing. After some modifications, the agreement was signed by the parties and Twachtman defended the appeal to its conclusion when the trial court’s judgment against the plaintiffs was affirmed in Cyr v. Coventry,
I
Initially, Hastings argues that the trial court ignored the standards set out in Konover Development Corp. v. Zeller, supra,
Twachtman maintains that Konover is distinguishable on its facts and, therefore, does not apply. Specifically, Twachtman suggests that the fact that Konover
We agree with Twachtman that Konover is inapplicable to the case before us. In Konover, the parties entered into a letter agreement whereby the partnership agreed, inter alia, that the plaintiff, in its sole discretion, could terminate the partnership if it determined that the project involving a proposed shopping mall was no longer feasible. Id., 211. In addition, the defendant would own all of the partnership assets and would be obligated to reimburse the plaintiff for all of its partnership expenditures. Id., 211-12. Thereafter, the plaintiff decided that the project was no longer feasible, informed the defendant of its decision and formally requested reimbursement for its out-of-pocket expenses, which the defendant did not acknowledge. Id., 213. The plaintiff brought a breach a contract claim against the defendant. Id. In response, the defendant denied any debt owed to the plaintiff and filed a counterclaim for breach of fiduciary duty. Id.
In the present case, it is undisputed that Twachtman owed a fiduciary duty to Hastings. The issue, however, is whether that fiduciary relationship existed subsequent to the acquisition of the res that gave rise to the attorney-client relationship between the parties and, thus, dictated the application of Konover. Specifically, it was not the acquisition of the Normand property that gave rise to the dispute; it was the legal fees owed to Twachtman who pеrformed legal services to accomplish Hastings’ objective, which was to acquire the property. In the present case, unlike the fiduciary relationship that existed between the partners in Konover who were engaged in a joint business venture, Hastings specifically agreed that he would pay Twаcht-man for his legal services upon the successful completion of Normand II on or before December 31, 1989. The attorney-client relationship between the parties ceased to exist at the conclusion of the last active file, Cyr v. Coventry, supra,
The trial court found that the “letter agreement of October 6,1988, and the mortgage documents executed pursuant to its terms . . . [indicate that] the plaintiffs intention was merely to acquire security for the payment of his fees after the Normand litigation had been concluded, and the mortgage, which was not to be enforced until that time, was a permissible security interest . . . for the purpose of securing the payment by the client of fees due the attorney.” The trial court also determined that the agreement of September 7, 1989, was “the result of free assent of the parties making it . . . based on the common law definition of duress under Connecticut law, because it was not the product of any wrongful conduct on the part of the plaintiff and he honestly and reasonably believed himself to be entitled to the contractual conditions contained therein.”
“[0]ur function [on appeal] is not to examine the record to see if the trier of fact could have reached a contrary conclusion. . . . Westport Taxi Service, Inc. v. Westport Transit District,
Hastings seeks to engraft the standards applicable to attorney-client relationships onto a fee dispute outside the res that formed the basis for that attorney-client relationship. Essentially, Hastings seeks to impose a breach of fiduciary duty in Twachtman’s assertion of his legal right. Under the circumstances of this case, we decline that invitation.
II
Hastings finally claims that regardless of the applicability of the Konover standards, the trial court’s findings were clearly erroneous. Specifically, Hastings claims that the trial court improperly found that (1) the interest rate charged by Twachtman on the September, 1989 note was reasonable and (2) Twachtman had nоt misapplied any of the sum paid by Hastings against the note and mortgage and in awarding damages calculated on the basis of such misapplication. Hastings claims that the trial court improperly found Twachtman more credible than Hastings.
It is axiomatic that “[t]he trial court, as trier of fact, determined who and what to believe and the weight to be accorded the evidence. The sifting and weighing of evidence is peculiarly the function of the trier. [N] othing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the
The weight of the evidence and the credibility of the witnesses were for the trial court to determine. We therefore will not disturb its judgment.
The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.
In this opinion the other judges concurred.
Notes
See Natural Harmony, Inc. v. Normand,
At trial, Twachtman testified that the fees charged for representation in the Cyr v. Coventry, supra,
We note that, on August 12, 1996, Hastings filed a grievance against Twachtman that was considered by the statewide grievance committee. The committee found no misconduct on the part of Twachtman that warranted disciplinary actiоn. The committee dismissed the complaint on January 17, 1997, without prejudice to Hastings’ right to refile it “should the findings of the trial court in which the dispute between [Hastings] and Twachtman] is currently pending evidence misconduct on the part of [Twachtman].”
Moreover, we note that none of the trial court’s findings with regard tо Twachtman’s compliance with the Rules of Professional Conduct was challenged in this appeal.
Twachtman posits that “[t]his case might have been similar to the Konover case if the dispute in Konover was [about] the fee that was due the general partner for services performed to the partnership.” To be fair, Twachtmаn’s brief was filed prior to our Supreme Court’s decision in Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin,
In his brief, Hastings states that “[t]he record clearly reflects that the court found the plaintiff to be extremely credible and the defendant to be less so."