Opinion
FSTCV136018809S
08-08-2016
Bank of America, N.A. v. Richard Testa, Jr
UNPUBLISHED OPINION
MEMORANDUM OF DECISION re MOTION FOR COUNSEL FEES (#126.00)
Kenneth B. Povodator, J.
When an appellate court interprets a statute in a manner that is not wholly consistent with the prior understanding of attorneys (and/or judges), there often is a flurry of activity as litigants attempt to adjust their positions to the newly-articulated judicial gloss.
In Connecticut Housing Finance Authority v. Alfaro, 163 Conn.App. 587, 135 A.3d 1256 (2016), the Appellate Court interpreted General Statutes § 42-150bb as requiring that a consumer prevail on the merits of the dispute, in order to be entitled to invoke the statutory provisions relating to the reciprocal right to attorneys fees, and that the burden was on the applicant to prove that there was such an outcome.
To successfully defend an action, a consumer party must prevail on the merits of [its] answer or special defenses. In raising his claim on appeal, the defendant has assumed that the plaintiff withdrew its action in response to his special defense. On the basis of this assumption, the defendant argues that he successfully defended the action and, thus, is entitled to attorneys fees under § 42-150bb. The record, however, does not indicate the reason that the plaintiff withdrew its action; it may have been because of the defendant's defense, but it may have been for a myriad of other reasons. There was no hearing on the merits, and the defendant offered no evidence at the hearing on the motion for attorneys fees to prove that the plaintiff withdrew the action in response to his defense. 163 Conn.App. 593 (internal quotation marks and citation, omitted).
In the case currently before the court, an award of attorneys fees had been made in favor of the defendant (#119.01), pursuant to § 42-150bb, prior to the decision in Alfaro and based on the court's dismissal of the action based on Practice Book § 14-3 (a so-called dormancy dismissal). Subsequently, the plaintiff moved to open the judgment of dismissal (#122.00), eliciting an objection from the defendant (#124.00), and the motion was denied (#122.01). (Coincidentally, the motion to open had been filed approximately one week after the official release date of the decision in Alfaro .)
After the motion to open judgment had been denied, the defendant again moved for attorneys fees pursuant to § 42-150bb (#126.00), which is the motion (with resulting objection) currently before the court. In its objection, the plaintiff relies largely on Alfaro . The defendant has filed an extensive memorandum, explaining why he believes that he is entitled to a supplemental award of attorneys fees.
Although the court disagrees with much of the substance of the defendant's arguments, ultimately, the court concludes that the defendant is entitled to a supplemental award of attorneys fees. However, for reasons stated, the court cannot enter such an award at this time.
In his reply memorandum, the defendant contends that the decision in Alfaro is not final, because at that time, a petition for certification to the Connecticut Supreme Court was then-pending. Since that time, the Supreme Court granted the petition, precisely on the issue in question. Nonetheless, this court is bound by existing appellate authority, and even if the Appellate Court decision is under review by the Supreme Court, this court is obligated to follow that decision, absent some contrary appellate authority (and no such contrary appellate authority has been cited). In other words, for purposes of this motion and at this time, Alfaro represents the current state of the law, which must be followed. To rule otherwise would be to " make believe" that the Alfaro decision did not exist.
The defendant also invokes the doctrine of " the law of the case" as further support for his position. The law of the case, however, as acknowledged by defendant, is not a rigid concept but rather a practical one, and therefore would have essentially no weight if, in fact, there is new appellate authority to the contrary of a ruling that constitutes " the law of the case" --because the existence of such new authority would be not only a good reason but a compelling (mandatory!) reason to depart from a prior decision.
The difficulty with the defendant's analysis is that the doctrine of " the law of the case" only applies--can only apply--to interlocutory rulings. In the seminal case of Breen v. Phelps, 186 Conn. 86, 98-99, 439 A.2d 1066 (1982), that limitation is explicitly noted. " Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." Further, the doctrine is not a limitation on the power of the judge but, again, a practical consideration. However, once a decision has sufficient finality that it no longer is able to be characterized as interlocutory, the law of the case does not apply and more binding principles such as res judicata and collateral estoppel become operative.
We note that [i]f the first decision was final, in the res judicata sense, it cannot be disregarded under the doctrine of the law of the case. If, however, the first decision was not final, but was merely interlocutory, it falls within the doctrine of the law of the case. Whereas a decision of one trial judge that is res judicata is binding on the second judge who confronts it, a decision of one trial judge that declares the law of the case is not a limitation on the power of the second judge in the case to decide otherwise, under appropriate circumstances. Brown v. Soh, 280 Conn. 494, 509 n.9, 909 A.2d 43 (2006) (internal quotation marks and citations, omitted).
In other words, the defendant has " understated" the impact of prior decisions in this case, on the issue currently before the court. It is not a matter of degree, involving a continuum, but a difference in kind. Absent a cognizable basis for disregarding the finality of a judgment, the court lacks authority/power to revisit matters conclusively decided as embodied in a final judgment.
As recited in the plaintiff's motion to open judgment (#122.00), a judgment of dismissal was entered on December 10, 2015 (#118.55). A supplemental order relating to attorneys fees was entered on January 4, 2016. (#119.01.) No appeal was taken from either order. As previously noted, a motion to open the judgment (#122.00) was denied on March 28, 2016 (#122.01), and no appeal has been taken from that order, either.
The motion seeking supplemental attorneys fees was filed on April 26, 2016, such that to the extent it is applicable, the defendant has complied with the time limit set forth in Practice Book § 11-21. At the time the motion was filed, there were no interlocutory rulings/orders in this case, and the presumptive 20-day period in which to file an appeal (Practice Book § 63-1) from any/all prior orders had elapsed.
The net result of the foregoing analysis is that the court does not believe that it has the discretion, existing in a true " the law of the case" scenario, to disregard prior rulings, all of which are final rather than interlocutory. It matters not whether there was sufficient evidence, in an Alfaro sense, to support a determination that the defendant prevailed on the merits when the case was dismissed for dormancy; the sufficiency of evidence could have been challenged if the issue had been raised in a timely manner, by an appeal within 20 days of the issuance of the order granting the initial motion for attorneys fees. The issue of sufficiency also might have been raised via the motion to open the judgment, or through a motion to reconsider/reargue, or possibly utilizing other procedural vehicles.
All of the elements of a claim for attorneys fees under § 42-150bb were essential to a determination of entitlement to attorneys fees under the statute, including status as a party who " successfully defended" the claims of the plaintiff. " An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered." Pollansky v. Pollansky, 162 Conn.App. 635, 652, 133 A.3d 167, 180 (2016) (internal quotation marks and citation, omitted). When the court issued the award, it implicitly found that all of the required elements of such a claim had been proven.
The plaintiff's arguments focus on the merits of the initial determination of entitlement to attorneys fees under the statute. The court is not writing on a blank slate but rather is faced with an existing determination of status as a prevailing party, and the plaintiff has not explained how or why the court has the ability to revisit that final determination at this time.
If the plaintiff is contending that the postjudgment proceedings should be treated as independent of the events leading to the dismissal, the result is the same, if with a slightly altered focus. Subsequent to the judgment of dismissal, the defendant successfully prosecuted his claim for attorneys fees and successfully resisted, on the merits, the plaintiff's motion to open the judgment. There is no ambiguity as with the case of a withdrawal or dismissal; in each instance, there was a motion and an objection, and in each instance, the defendant prevailed.
The court recognizes that the time frame for the current claim for attorneys fees commences after the defendant filed his initial motion for attorneys fees (the cut-off date for the initial claim for attorneys fees), but the disposition of that earlier motion occurred after that cut-off date. The point is not to determine the precise scope of the allowable claim but rather to demonstrate that however one measures the post-dismissal proceedings for purposes of the second motion, the defendant was the prevailing party, on the merits of all issues raised or resolved post-dismissal.
As noted earlier, the court cannot award attorneys fees at this time, despite having concluded that the defendant is entitled to such an award. The defendant submitted an affidavit relating to attorneys fees (#127.00, improperly coded as a motion); the affidavit recites that actually billing records are attached, but none were attached to the affidavit as filed with the court. The court cannot determine whether the claimed fees are appropriate--both as to value and work performed--without such " backup." As a complicating factor, the court does not know whether the omission only related to the version of the affidavit filed (electronically) with the court or whether it is also an omission with respect to the copy provided to opposing counsel. As a matter of due process, the opposing party is entitled to such information so as to be able to make an informed decision as to whether to challenge specific aspects of the claim (in addition to the general objection already before the court); Smith v. Snyder, 267 Conn. 456, 479 n.14, 839 A.2d 589 (2004).
Accordingly, the court is overruling the plaintiff's objection to the motion. The defendant is ordered to file a corrected affidavit with attached timesheets or other backup materials (such as actual bills) within 10 days of the filing of this decision. The plaintiff shall have two weeks after such filing in which to file any objections it may have to the specifics of the claim for attorneys fees as supported by such newly filed backup.