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Stoor v. Vehs

ZACHARY STOOR v. ERWIN VEHS

(AC 46268)

Alvord, Seeley and Westbrook, Js.

Syllabus

The intervening plaintiff, C, appealed, and the plaintiff cross appealed, from

the judgment of the trial court awarding C damages for the services

that he provided as the plaintiff’s attorney. The plaintiff hired C to

represent him in a negligence action against the defendant and signed

a retainer agreement entitling C to 33.33 percent of the plaintiff’s recovery up to the amount of $300,000. Less than one week later, C procured

a settlement offer of $100,000. The plaintiff did not authorize C to accept

the offer and, instead, terminated C’s representation and retained

another attorney. The trial court granted C’s motion to intervene in the

plaintiff’s case against the defendant to preserve his right to recover

legal fees from the plaintiff. Thereafter, the trial court rendered judgment

for the plaintiff in accordance with a settlement agreement between the

plaintiff and the defendant. Subsequently, a trial was held with respect

to C’s intervening complaint. The trial court awarded C $9000 for the

reasonable value of the services he provided and denied C’s claim of

unjust enrichment. Held:

1. The trial court properly applied Cole v. Myers (128 Conn. 223) to determine

the proper measure of damages to award to C: C provided no authority

for his proposition that the doctrine of substantial performance applied

to contingency fee agreement cases in which an attorney was discharged

by his client prior to settlement, and, pursuant to Cole, an attorney in

such a case was permitted to recover only the reasonable value of the

services he performed on his client’s behalf; moreover, the trial court

analyzed the work performed by C under the terms of rule 1.5 of the

Rules of Professional Conduct and found that an award in the amount

of $9000 constituted the reasonable value of the services he performed

on the plaintiff’s behalf.

2. The trial court’s finding that C was entitled to the reasonable value of

the services he performed on the plaintiff’s behalf was supported by

the evidence in the record and, therefore, was not clearly erroneous.

Argued January 30—officially released July 9, 2024

Procedural History

Action to recover damages for, inter alia, personal

injuries sustained by the plaintiff as a result of the

defendant’s alleged negligence, and for other relief,

brought to the Superior Court in the judicial district of
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Stoor v. Vehs

New Haven, where the court, Abrams, J., granted the

motion to intervene as a party plaintiff and to file an

intervening complaint filed by Gregory P. Cohan; thereafter, the court, Kamp, J., rendered judgment for the

plaintiff in accordance with a stipulation of the plaintiff

and the defendant; subsequently, the intervening complaint was tried to the court, Abrams, J.; judgment in

part for the plaintiff, from which the intervening plaintiff appealed and the plaintiff cross appealed to this

court. Affirmed.

Gregory P. Cohan, self-represented, the appellantcross appellee (intervening plaintiff).

Chet L. Jackson, for the appellee-cross appellant

(plaintiff).

Opinion

ALVORD, J. The intervening plaintiff, Attorney Gregory P. Cohan, appeals from the judgment of the trial

court rendered after a court trial wherein the court

determined that the plaintiff, Zachary Stoor, owed

Cohan $9000 for his services as the plaintiff’s attorney.1

Specifically, Cohan claims that the court improperly

awarded him less than the amount provided for in his

contingency fee agreement with the plaintiff.2 On cross

appeal, the plaintiff claims that ‘‘the discharge of an

attorney in a contingency fee case prior to settlement

1 On June 20, 2023, the court, Kamp, J., granted the plaintiff’s motion for

judgment, which enforced an April, 2021 final stipulation executed by the

plaintiff and the defendant, Erwin Vehs. The court also ordered the defendant’s counsel to hold in escrow a portion of the settlement funds representing attorney’s fees. The defendant is not participating in this appeal. 2 Cohan also claims on appeal that the trial court erred by not awarding

him damages pursuant to the doctrine of unjust enrichment. Because we

conclude that the court’s finding that Cohan was entitled, pursuant to our

Supreme Court’s decision in Cole v. Myers, 128 Conn. 223, 230, 21 A.2d 396

(1941), to recover $9000 for the reasonable value of the services he performed

on the plaintiff’s behalf is not clearly erroneous, we need not reach Cohan’s

claim with respect to unjust enrichment.
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Stoor v. Vehs

does not constitute a breach of contract under Connecticut law and the award of damages for quantum meruit

under [the breach of contract count] . . . was

improper.’’ As to both the appeal and cross appeal, we

affirm the judgment of the trial court.

The following facts, as found by the court, and procedural history are relevant to our resolution of the appeal

and cross appeal. On Saturday, July 27, 2019, the plaintiff was involved in a motorcycle accident and transported by ambulance to Yale-New Haven Hospital,

where he was admitted as a patient. As a result of the

accident, the plaintiff sustained serious injuries that

required the amputation of part of his left leg.

On Sunday, July 28, 2019, the girlfriend of the plaintiff’s father contacted Cohan regarding his possible legal

representation of the plaintiff in an action against the

defendant, Erwin Vehs, the driver of the other vehicle

involved in the accident. That same day, Cohan arrived

at the hospital and spoke with the plaintiff for at least

thirty minutes. During portions of their meeting, the

plaintiff’s father and one other visitor were present in

the plaintiff’s hospital room. Also during the meeting,

the plaintiff signed a retainer agreement authorizing

Cohan to pursue an action on behalf of the plaintiff

against the defendant. The retainer agreement entitled

Cohan to 33.33 percent of any of the plaintiff’s recovery

up to the amount of $300,000.

Following his meeting with the plaintiff, Cohan contacted the defendant’s insurance adjuster. Cohan procured an oral settlement offer of $100,000, the limit of

the defendant’s liability insurance policy, contingent on

the plaintiff (1) accepting the offer no fewer than fifteen

days after the accident, (2) executing a release, and (3)

providing to the defendant’s insurance company his

hospital discharge summary. The plaintiff did not authorize Cohan to accept the $100,000 offer.
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Stoor v. Vehs

On August 1, 2019, Cohan again visited the plaintiff

at the hospital. After the visit, the plaintiff sent a text

message to Cohan terminating Cohan’s representation

and indicating that he would be retaining new counsel.

The plaintiff stated in the text message that he was ‘‘not

in a position on Sunday [July 28, 2019] to actually make

any decisions.’’ Cohan ‘‘immediately responded to [the

plaintiff’s] text indicating that he had received the

$100,000 offer and instructing [the plaintiff] to ‘[p]lease

tell your new lawyer that my fee is $33,333.33 plus

expenses.’ ’’

The plaintiff subsequently retained, as successor

counsel, Attorney Michael Cahill. In October, 2019, the

plaintiff commenced this negligence action against the

defendant. On January 12, 2021, Cohan filed a motion

to intervene in order ‘‘to preserve his right to recover

his legal fee earned during the course of representing

the plaintiff . . . .’’ The court, Abrams, J., granted

Cohan’s motion. On April 1, 2022, Cohan filed the operative amended intervening complaint sounding in breach

of contract and unjust enrichment. In his demand for

relief, Cohan requested, inter alia, equitable damages.

The plaintiff filed an answer and raised as a special

defense that he lacked ‘‘the mental capacity to enter

into any contractual commitment.’’

On April 16, 2021, Cahill procured a 1.5 million dollar

settlement in the negligence action on the plaintiff’s

behalf. The judgment stated: ‘‘The parties have reached

a resolution after negotiations and hereby agree to a

stipulated judgment of $1,500,000. The parties further

agree that within 20 days of the court’s approval of this

stipulation the defendant’s insurer . . . will pay

$100,000 of the stipulated judgment . . . .’’ The judgment further stated that the plaintiff would receive the

remaining 1.4 million dollars from the defendant ‘‘if he

has a windfall such as lottery income, an inheritance

or any other financial gain . . . .’’ On June 20, 2023,
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Stoor v. Vehs

the court granted the plaintiff’s motion for judgment

and rendered judgment in favor of the plaintiff. See

footnote 1 of this opinion.

A court trial was held on October 4, 2022, with respect

to Cohan’s intervening complaint. Both the plaintiff and

Cohan entered several exhibits into evidence. Cohan

testified on his own behalf that, during his July 28,

2019 meeting with the plaintiff, the plaintiff did not

demonstrate an inability to answer his questions and

that the plaintiff ‘‘actually went into great detail about

his accident.’’ With respect to the work that he did on

the plaintiff’s behalf, Cohan testified that, in addition

to speaking to the defendant’s insurance adjuster, he

went to the accident scene, took photographs and videos of the accident scene, obtained the police report,

and reviewed town records to see whether the defendant owned any property.

In addition to his own testimony, the plaintiff presented the testimony of Cahill. The plaintiff testified

that he discharged Cohan on August 1, 2019, because

‘‘I realized that I wasn’t comfortable. You know, I never

hired this guy; I didn’t know this guy. It wasn’t my

decision to hire him. And I was so out of it on—on

Sunday on, you know, the 28th that it—it really—it

wasn’t my decision whatsoever . . . .’’ Cahill then testified, and the court interjected the question of whether

he would agree ‘‘even if . . . [the plaintiff] didn’t have

capacity to sign the contract, that [Cohan] is due some

kind of compensation for the work he did,’’ to which

Cahill responded, ‘‘I would agree that on a quantum

meruit basis for his time allocated up until the time of

the discharge, if [the plaintiff] had the capacity, sure,

yes.’’ Upon the conclusion of trial, the court ordered

posttrial briefing on whether the plaintiff had the capacity to contract with Cohan.
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Stoor v. Vehs

On October 25, 2022, both the plaintiff and Cohan

filed their posttrial briefs. In his posttrial brief, the plaintiff argued that the court should find that the contingency fee agreement was voidable because he lacked

the capacity to contract with Cohan. The plaintiff

argued that Cohan’s recovery should be limited to the

reasonable fee for the work he performed pursuant

to the doctrine of quantum meruit and the guidance

provided in our Supreme Court’s decision in Cole v.

Myers, 128 Conn. 223, 230, 21 A.2d 396 (1941). In his

posttrial brief, Cohan argued that he is entitled to

recover under the contingency fee agreement because

the plaintiff did not prove that he lacked the capacity

to contract, and, in the alternative, he is entitled to

judgment pursuant to the doctrine of unjust enrichment.

Cohan also filed, as an exhibit to his posttrial brief, a

document representing that, between Sunday, July 28,

and Thursday, August 1, 2019, he spent approximately

forty-one hours working on the plaintiff’s case.

On February 1, 2023, the court issued a memorandum

of decision. With respect to Cohan’s breach of contract

claim, the court determined that the plaintiff had the

capacity to contract. The court stated: ‘‘The ironic thing

is that court’s foregoing finding of capacity makes little

to no difference in the outcome of this case as the result

under either finding would be an award to [Cohan] of

the reasonable value of the services he performed

. . . .’’ The court, quoting Cole v. Myers, supra, 128

Conn. 230, recognized that, in cases where a party discharges an attorney prior to settlement, ‘‘ ‘[o]ur rules

of policy support the minority view. An attorney at law

is an officer of the court; a minister of justice. He is

entitled to fair compensation for his services, but since,

because of the highly confidential relationship, the client may discharge him even without just cause, he

should receive reasonable compensation for the work

he has done up to that point, and not the agreed fee
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Stoor v. Vehs

he probably would have earned had he been allowed

to continue in his employment. This rule is not unfair

to the attorney. He will receive fair compensation for

what he has done; his position as an officer of the court

does not entitle him to receive payment for services he

has not rendered.’ . . . The decision in Cole, while over

eighty years old, still appears to be controlling law on

the issue of compensation for attorneys whose services

have been terminated in contingency cases.’’ (Citation

omitted.)

In determining the reasonable value of the services

performed by Cohan, the court applied the reasonable

fee factors set forth in rule 1.5 of the Rules of Professional Conduct3 to the work Cohan performed on the

plaintiff’s behalf and determined: ‘‘The evidence presented indicated that [Cohan] is a veteran attorney with

experience in the field of personal injury. The activities

that he detailed in his testimony regarding the work he

performed on behalf of [the plaintiff] represent reasonable measures most responsible attorneys would take

in relation to a serious personal injury case, including

visiting the potential client in the hospital on a weekend.

He promptly learned the identity of [the defendant’s]

insurer and initiated contact, procuring an offer within

days. He also claimed that he did some research regarding additional sources of coverage and investigated the

3 Rule 1.5 of the Rules of Professional Conduct provides in relevant part:

‘‘(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1)

The time and labor required, the novelty and difficulty of the questions

involved, and the skill requisite to perform the legal service properly; (2)

The likelihood, if made known to the client, that the acceptance of the

particular employment will preclude other employment by the lawyer; (3)

The fee customarily charged in the locality for similar legal services; (4)

The amount involved and the results obtained; (5) The time limitations

imposed by the client or by the circumstances; (6) The nature and length

of the professional relationship with the client; (7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and (8)

Whether the fee is fixed or contingent. . . .’’
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Stoor v. Vehs

accident itself. The court presumes that the foregoing

activity probably caused [Cohan] to put other matters

aside in the short term. All these factors militate in

favor of the award that exceeds what [Cohan] would

recover if the court simply estimated the time he put in

on [the plaintiff’s] case and multiplied it by a reasonable

hourly fee. If the fee involved had been fixed rather

than contingent, the court would be less comfortable

in taking this approach. On the other side of the ledger,

while the court is impressed with [Cohan’s] ability to

work quickly, otherwise his efforts did not require any

special skill that would not have been possessed by

any attorney with experience in personal injury as the

issues presented were neither novel nor complex. . . .

‘‘As a result, in consideration of all the relevant factors contained in rule 1.5, the court awards [Cohan] a

legal fee of $9000.’’ The court then denied Cohan’s claim

of unjust enrichment, stating in a footnote that, ‘‘even

if the court had found that the contract was invalid and

[Cohan] possessed a valid unjust enrichment claim, the

result in this matter would have remained unchanged as

the court would have awarded [Cohan] the reasonable

value of his services pursuant to rule 1.5 of the Rules

of Professional Conduct.’’ This appeal followed.

Before turning to Cohan’s appeal and the plaintiff’s

cross appeal, we set forth the relevant standard of

review and legal principles. ‘‘[W]here the legal conclusions of the court are challenged, we must determine

whether they are legally and logically correct and

whether they find support in the facts set out in the

memorandum of decision; where the factual basis of

the court’s decision is challenged we must determine

whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light

of the evidence and the pleadings in the whole record,

those facts are clearly erroneous. . . .
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Stoor v. Vehs

‘‘When an attorney undertakes to represent a client

in a personal injury action, the attorney and his client

may provide by contract, which contract shall comply

with all applicable provisions of the rules of professional conduct governing attorneys adopted by the

judges of the Superior Court, that the fee for the attorney shall be paid contingent upon, and as a percentage

of: (1) [d]amages awarded and received by the claimant;

or (2) [the] settlement amount [received] pursuant to

a settlement agreement. General Statutes § 52-251c (a).’’

(Citations omitted; internal quotation marks omitted.)

McCullough v. Waterside Associates, 102 Conn. App.

23, 27–28, 925 A.2d 352, cert. denied, 284 Conn. 905,

931 A.2d 264 (2007).

‘‘Our Supreme Court long ago explained that an attorney is entitled to a reasonable fee for his services. ‘An

attorney at law is an officer of the court; a minister

of justice. He is entitled to fair compensation for his

services, but since, because of the highly confidential

relationship, the client may discharge him even without

just cause, he should receive reasonable compensation

for the work he has done up to that point, and not the

agreed fee he probably would have earned had he been

allowed to continue in his employment.’ Cole v. Myers,

[supra, 128 Conn. 230].’’ Altschuler v. Mingrone, 98

Conn. App. 777, 780–81, 911 A.2d 337 (2006), cert.

denied, 281 Conn. 927, 918 A.2d 276 (2007), and cert.

denied, 281 Conn. 927, 918 A.2d 276 (2007).

I

We first address Cohan’s appeal. Cohan claims that

there is insufficient evidence in the record to support

the court’s decision to award him $9000 rather than the

$33,333.33 that he asserts he is entitled to pursuant

to the contingency fee agreement. Specifically, Cohan

argues that the court improperly determined that the

appropriate measure of damages for the breach of the
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Stoor v. Vehs

contingency fee agreement is the reasonable value of

the services he performed on the plaintiff’s behalf prior

to the termination of his representation pursuant to

Cole v. Myers, supra, 128 Conn. 230, rather than his

expectation damages pursuant to the doctrine of substantial performance. The plaintiff responds that the

court properly applied Cole to award Cohan damages

because the plaintiff discharged Cohan prior to settlement. We agree with the plaintiff.

In his principal appellate brief, Cohan relies on Pack

2000, Inc. v. Cushman, 311 Conn. 662, 685, 89 A.3d 869

(2014), for the proposition that he is entitled to damages

in accordance with the doctrine of substantial performance because he ‘‘substantially performed his obligations pursuant to the terms of the contingent fee agreement . . . .’’ (Emphasis added.) ‘‘The doctrine of

substantial performance shields contracting parties

from the harsh effects of being held to the letter of

their agreements. Pursuant to the doctrine of substantial performance, a technical breach of the terms of a

contract is excused, not because compliance with the

terms is objectively impossible, but because actual performance is so similar to the required performance that

any breach that may have been committed is immaterial.’’ (Internal quotation marks omitted.) Pack 2000,

Inc. v. Cushman, supra, 675. ‘‘Substantial performance

occurs when, although the conditions of the contract

have been deviated from in trifling particulars not materially detracting from the benefit the other party would

derive from a literal performance, [the plaintiff] has

received substantially the benefit he expected, and is,

therefore, bound to [perform].’’ (Internal quotation

marks omitted.) Id., 685.

The guidance in Pack 2000, Inc., is inapposite to the

present appeal, as the facts of that matter concerned

a defendant who contracted to transfer the management
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Stoor v. Vehs

and, at the plaintiff’s option, ownership of two automobile repair shops. Id., 664. Cohan has furnished no

authority for the proposition that the doctrine of substantial performance applies in litigation seeking

enforcement of a contingency fee agreement where a

client discharged an attorney prior to settlement. Our

research likewise has uncovered no such authority.

Rather, our jurisprudence on contingency fee agreement cases allows an attorney discharged by a client

prior to settlement to recover for the reasonable value

of the services the attorney performed on the client’s

behalf. See Cole v. Myers, supra, 128 Conn. 230; see

also Altschuler v. Mingrone, supra, 98 Conn. App. 782

(court awarded attorney, who was discharged prior to

settlement, reasonable fee for work performed on client’s underinsured motorist claim).

In the present case, the court determined Cohan’s

award to be ‘‘the reasonable value of the services he

performed . . . .’’ The court analyzed the work performed by Cohan under the terms of rule 1.5 of the

Rules of Professional Conduct and found that an award

in the amount of $9000 constituted the reasonable value

of the services he performed on the plaintiff’s behalf.4

Accordingly, we conclude that the court properly

applied Cole v. Myers, supra, 128 Conn. 230, rather than

the doctrine of substantial performance, in determining

the proper measure of damages.5

4 Cohan does not argue on appeal, nor does the plaintiff argue on cross

appeal, that the trial court’s award of $9000 was unreasonable. Accordingly,

that issue is not before this court. 5 Cohan also argues that he substantially performed under the contingency

fee agreement because ‘‘the plaintiff did, in fact, accept the $100,000 benefit

that [Cohan] had procured on his behalf.’’ The facts found by the court

indicate that the plaintiff ‘‘[a]t no time’’ authorized Cohan ‘‘to accept the

$100,000 offer’’ and that the plaintiff’s successor counsel obtained an offer

on the plaintiff’s behalf that included ‘‘the $100,000 in addition to the

agreement of the defendant to pay additional moneys if certain criteria are

met.’’ (Emphasis added.)
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Stoor v. Vehs

II

We next address the plaintiff’s cross appeal. The

plaintiff claims that the court improperly determined

that he breached the contingency fee agreement by

discharging Cohan. The plaintiff argues that, ‘‘because

the trial court held, based on its findings of fact, that

the law in Cole v. Myers, [supra, 128 Conn. 230] applies

and quantum meruit was the proper basis of recovery

in this case . . . the trial court could not award damages for breach of contract.’’6 (Citation omitted.)

The plaintiff directs our attention to case law that he

claims stands for the proposition that, in a contingency

fee agreement case where a client discharges an attorney prior to settlement, the client will not be held liable

for breach of contract. See Cole v. Myers, supra, 128

Conn. 229–30; McCullough v. Waterside Associates,

supra, 102 Conn. App. 28. That same authority, however,

permits an attorney, such as Cohan, who has been discharged to ‘‘receive reasonable compensation for the

work he has done up to that point . . . .’’ Cole v. Myers,

supra, 230.7

In Cole, ‘‘[t]he plaintiff tried his case on the theory

that if he failed to prove an express contract he could

6 Cohan responds that the plaintiff’s claim on cross appeal was not properly

raised in the trial court and, therefore, is not appropriately before this court

on appeal. Our rules of practice preclude us from reviewing claims made

for the first time on appeal that were not addressed by the trial court. See

C. W. v. Warzecha, 225 Conn. App. 137, 146, 314 A.3d 617 (2024). In the

present case, however, the issue of whether Cohan could recover pursuant

to the doctrine of quantum meruit was raised at trial, argued by the plaintiff

in his posttrial brief, and discussed by the court in its memorandum of

decision. The plaintiff’s claim, therefore, was properly raised before and

analyzed by the trial court and, accordingly, is properly before this court

on appeal. 7 At oral argument before this court, in response to a question, the plaintiff’s counsel confirmed that Cole v. Myers, supra, 128 Conn. 230, is ‘‘the

correct case law’’ and that the trial court ‘‘correctly appl[ied] Cole . . . .’’
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Stoor v. Vehs

recover the reasonable value of his services, and produced much evidence in support of his claim on quantum meruit.’’8 Id., 228. The jury, however, found that

the plaintiff had proven the existence of an express

contract. Id. On appeal, our Supreme Court analyzed

‘‘the question whether, where an attorney is employed

on a contingent basis, it is an implied term of the contract that he will have a reasonable opportunity to perform, and if he is prevented from doing so by a wrongful

discharge, the contract has been broken and he is entitled to recover what he would probably have earned

had his employment continued.’’ (Emphasis added.) Id.,

228–29. The court concluded that, because the attorney

was discharged by his client prior to settlement, he was

entitled to ‘‘receive reasonable compensation for the

work he has done up to that point, and not the agreed

fee he probably would have earned had he been allowed

to continue in his employment.’’ Id., 230.

In the present case, the court’s memorandum of decision makes clear that it awarded Cohan damages under

the precedent of Cole. The court began by recognizing

that, although the plaintiff and Cohan had entered into

a valid contingency fee agreement, the appropriate remedy nevertheless is ‘‘an award to [Cohan] of the reasonable value of the services he performed . . . .’’ (Emphasis added.) The court then set forth the legal principles

as espoused in Cole and stated that the reasonable value

of the services performed by Cohan is determined by

comparing the factors set forth in rule 1.5 of the Rules

of Professional Conduct to the work performed on the

plaintiff’s behalf. See Altschuler v. Mingrone, supra, 98

Conn. App. 781. After applying the factors set forth in

8 ‘‘Quantum meruit is a theory of contract recovery that does not depend

upon the existence of a contract, either express or implied in fact. . . .

Rather, quantum meruit arises out of the need to avoid unjust enrichment

to a party, even in the absence of an actual agreement. . . . Quantum meruit

literally means as much as he has deserved . . . .’’ (Internal quotation marks

omitted.) McCullough v. Waterside Associates, supra, 102 Conn. App. 28 n.4.
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rule 1.5, the court found that Cohan is entitled to an

award of $9000 for the reasonable value of his work

on the plaintiff’s case. Accordingly, we conclude that

the court’s finding that Cohan was entitled to the reasonable value of the services he performed on the plaintiff’s behalf is supported by evidence in the record and,

therefore, is not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.