Hanks v. Pandolfo , 38 Conn. Super. Ct. 447 ( 1982 )

On April 2, 1979, the plaintiffs brought suit claiming damages caused by the defendant's sale of a dented refrigerator. On April 24, 1979, the plaintiffs amended their complaint alleging in seven counts that the defendant had breached a contract by which it had agreed to sell kitchen cabinets and appliances to the plaintiffs for $3196. As amended, the complaint alleged (1) false, misleading and deceptive representations by the defendant; (2) breach of express and implied warranties; (3) delivery of a defective appliance (a refrigerator with a two foot dent); (4) violation of the Retail Installment Sales Financing Act; (5) two violations of the federal Consumer Product Warranties Act; and (6) unfair trade practices. The plaintiffs claimed damages and attorney's fees payable to the New Haven Legal Assistance Association, Inc. The plaintiffs were willing throughout the proceedings to settle the matter for $900 plus $750 attorney's fees.

Examination of the record discloses entry of numerous pleadings.¹ Together with this state of the pleadings, the court had before it counsel's affidavit that she had expended twenty-five and one-quarter hours on the file plus three hours spent in drafting the application and supporting memorandum. She also submitted a claim with supporting affidavits that the fair value of her services was $100 per hour. The counsel fees claimed were $2825. The court awarded $450.

The plaintiffs contend (1) that the court was bound to grant attorney's fees based on actual time expended, (2) that the court failed to grant reasonable attorney's fees and (3) that the court reduced the fees on an improper basis. We do not agree.

The summary judgment as to liability resolved only the fifth and sixth counts of the amended complaint in favor of the plaintiffs. These counts dealt exclusively with alleged violations of the federal Consumer Product Warranties Act. 15 U.S.C. § 2301 through 2312. Since the fundamental principle is "that every litigant must bear his own expenses of litigation except as otherwise provided by statute"; Peterson v. Norwalk, 152 Conn. 77, 80,203 A.2d 294 (1964); this claim for attorney's fees must be dealt with solely within the context of the language contained in that statute.

The federal Consumer Product Warranties Act provides that "[i]f a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys' fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys fees would be inappropriate."² (Emphasis added.)

The provision makes four points clear. First, the use of the permissive language "may" instead of the mandatory language "shall" connotes a clear option of the court to allow or not to allow the recovery of costs whether they be attorney's fees or otherwise. Morris v. Timenterial, Inc.,168 Conn. 41, 43, 357 A.2d 507 (1975).

Second, if the court allows attorney's fees, such fees may be based on actual time expended. Thus, if the court elects to do so, it may totally exclude otherwise relevant considerations and base its fee calculation solely on the time expended, a procedure which presumably would not otherwise be permissible absent the specific language contained in this statute.

Third, whatever method of calculation is used, the costs must be "reasonably incurred."

Finally, the use of the mandatory language "shall" in the last phrase of the provision connotes that a determination must be made that an award of attorney's fees is or is not appropriate. The plain meaning of the language "in its discretion" contained in this phrase, when read together with the other language of the subsection, permits the court to exercise its judgment (1) to award no attorney's fees, or (2) to award attorney's fees based on time only, or (3) to award attorney's fees pursuant to its discretion. Whatever its content, a decision must be made on the issue of counsel fees.

In its articulated memorandum of decision, the trial court accepted as proved the claim that twenty-five and one-quarter hours were expended in pursuing the plaintiffs' claim. The court further found that this amount of time bore a reasonable relationship to the pleadings filed and that the attorney involved was unquestionably well qualified. The court concluded that these factors were outweighed, however, "by the nature of the litigation and the amount involved therein."

The action was initially to recover damages for the sale and delivery of a dented refrigerator. The plaintiffs indicated from the very beginning that the perceived value of the case was $900 plus attorney's fees. Under these circumstances, it is not unreasonable for the court to conclude that these factors outweighed the other relevant considerations bearing on the issue of attorney's fees.

"A court has few duties of a more delicate nature than that of fixing counsel fees. The degree of delicacy increases when the matter becomes one of review on appeal. The principle of law, which is easy to state but difficult at times to apply, is that only in the case of clear abuse of discretion by the trier may we interfere. Hayward v. Plant, 98 Conn. 374, 382, 119 A. 341 [1923]; Golstein v. Handley, 390 Ill. 118, 125,60 N.E.2d 851 [1945]." Hoenig v. Lubetkin, 137 Conn. 516,525, 79 A.2d 278 (1951). Such is not the case here.

There is no error.

In this opinion DALY and F. HENNESSY, Js., concurred.