TOTAL RECYCLING SERVICES OF CONNECTICUT, INC., et al. v. CONNECTICUT OIL RECYCLING SERVICES, LLC, SC 18823

Judicial District of Middlesex

 

      Attorney's Fees; Law of the Case Doctrine; Whether, Where a Party is Entitled to Attorney's Fees by Contract, the Party May Recover Fees Incurred in Litigating  All Related Claims.  The plaintiffs sued the defendant and the defendant counterclaimed, alleging that the plaintiffs breached three contracts.  The defendant also sought to recover attorney's fees pursuant to provisions in two of the contracts that allowed for the recovery of such fees.  The defendant prevailed in part on its counterclaim and moved for an award of attorney's fees, attaching an affidavit and itemized list of the attorney's fees incurred.  The trial court denied the motion, ruling that it was necessary for the defendant to identify which of the fees were incurred in prosecuting the counterclaim with regard to the two contracts that specifically provide for the recovery of attorney's fees.  The defendant filed a renewed motion for attorney's fees, attaching the same affidavit and list of fees that it had attached to its original motion.  At an evidentiary hearing on the renewed motion, the defendant's lawyer and an expert witness testified that it would be "extremely difficult" to sort out the attorney's fees in the manner requested by the court and that it was not generally the custom to itemize in such detail.  The trial court denied the renewed motion for attorney's fees, holding that the previous order requiring the defendant to identify the fees associated with the litigation of the two contracts providing for fees was the law of the case.  The defendant appealed, claiming that Heller v. D. W. Fish Realty Co., 93 Conn. App. 727 (2006), established its right to recover attorney's fees under the circumstances here.  In Heller, the Appellate Court ruled that, because the Connecticut Unfair Trade Practices Act (CUTPA) authorizes an award of attorney's fees incurred in prosecuting a CUTPA claim, and because the plaintiffs' breach of contract and negligence claims were related to their CUTPA claim in that they depended on the same facts, it was improper for the trial court to order that the plaintiffs submit evidence identifying which fees specifically related to their CUTPA claim.  The defendant claimed that Heller established that, where a party is entitled to attorney's fees by statute or by contract, the party may recover attorney's fees incurred for litigating any and all related claims.  The Appellate Court (129 Conn. App. 296) refused to read Heller so broadly and affirmed the judgment denying attorney's fees, holding that, because the first judge that denied the defendant's motion for attorney's fees correctly decided the issue, the second judge properly relied on the law of the case doctrine in denying the renewed motion.  The Supreme Court will decide whether the Appellate Court properly affirmed the trial court judgment denying the defendant's motion for contractual attorney's fees.