Stoor v. Vehs

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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 recov-
ery 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; there-
after, the court, Kamp, J., rendered judgment for the
plaintiff in accordance with a stipulation of the plaintiff
and the defendant; subsequently, the intervening com-
plaint was tried to the court, Abrams, J.; judgment in
part for the plaintiff, from which the intervening plain-
tiff appealed and the plaintiff cross appealed to this
court. Affirmed.
Gregory P. Cohan, self-represented, the appellant-
cross appellee (intervening plaintiff).
Chet L. Jackson, for the appellee-cross appellant
(plaintiff).
Opinion

ALVORD, J. The intervening plaintiff, Attorney Greg-
ory 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 defen-
dant’s counsel to hold in escrow a portion of the settlement funds represent-
ing 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 Connect-
icut 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 proce-
dural history are relevant to our resolution of the appeal
and cross appeal. On Saturday, July 27, 2019, the plain-
tiff was involved in a motorcycle accident and trans-
ported 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 plain-
tiff’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 con-
tacted the defendant’s insurance adjuster. Cohan pro-
cured 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 autho-
rize Cohan to accept the $100,000 offer.
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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 opera-
tive 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 judg-
ment 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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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 vid-
eos of the accident scene, obtained the police report,
and reviewed town records to see whether the defen-
dant owned any property.

In addition to his own testimony, the plaintiff pre-
sented 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 testi-
fied, 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 capac-
ity to contract with Cohan.
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On October 25, 2022, both the plaintiff and Cohan
filed their posttrial briefs. In his posttrial brief, the plain-
tiff argued that the court should find that the contin-
gency 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 dis-
charges 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 cli-
ent 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 Profes-
sional Conduct3 to the work Cohan performed on the
plaintiff’s behalf and determined: ‘‘The evidence pre-
sented 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 reason-
able 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 regard-
ing 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 unreason-
able fee or an unreasonable amount for expenses. The factors to be consid-
ered 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, reputa-
tion, and ability of the lawyer or lawyers performing the services; and (8)
Whether the fee is fixed or contingent. . . .’’
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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 fac-
tors 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 conclu-
sions 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 deci-
sion 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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‘‘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 profes-
sional conduct governing attorneys adopted by the
judges of the Superior Court, that the fee for the attor-
ney 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 attor-
ney 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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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 sub-
stantial performance. The plaintiff responds that the
court properly applied Cole to award Cohan damages
because the plaintiff discharged Cohan prior to settle-
ment. 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 perfor-
mance because he ‘‘substantially performed his obliga-
tions pursuant to the terms of the contingent fee agree-
ment . . . .’’ (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 substan-
tial performance, a technical breach of the terms of a
contract is excused, not because compliance with the
terms is objectively impossible, but because actual per-
formance is so similar to the required performance that
any breach that may have been committed is immate-
rial.’’ (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 mate-
rially 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 automo-
bile repair shops. Id., 664. Cohan has furnished no
authority for the proposition that the doctrine of sub-
stantial 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 agree-
ment 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 cli-
ent’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 per-
formed 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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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 dam-
ages 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 attor-
ney 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 dis-
charged 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 plain-
tiff’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 pro-
duced much evidence in support of his claim on quan-
tum 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 con-
tract that he will have a reasonable opportunity to per-
form, and if he is prevented from doing so by a wrongful
discharge, the contract has been broken and he is enti-
tled 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 deci-
sion 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 rem-
edy nevertheless is ‘‘an award to [Cohan] of the reason-
able value of the services he performed . . . .’’ (Empha-
sis 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 rea-
sonable value of the services he performed on the plain-
tiff’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.