Opinion
CV126013696S CV126014254S
04-11-2016
Dish Network, LLC fka Echostar Satellite, LLC v. Kevin Sullivan, Commissioner of Revenue Services
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE
Henry S. Cohn, Judge Trial Referee.
Ruling On Motion For Interest
The motion for interest by the plaintiff is denied. The statute relied upon by the plaintiff, General Statutes § 12-268c(b)(1), applies only to the situation where the commissioner of the department of revenue services (DRS) allows for a refund due to overpayment. The correct statute referring to interest after a successful tax appeal from a gross earnings tax payment is § 12-268 l . This section provides that the reviewing court should grant relief as is equitable, and " if such tax has been paid prior to the granting of such relief, may order the Treasurer to pay the amount of such relief, with interest [in a set amount]."
The plaintiff made the claim for interest in its complaint in each case. No reference to interest was subsequently made in the motion for summary judgment or at oral argument thereon. The court issued a ruling on the DRS's liability on December 2, 2013, but left the exact amount of the damages due to the plaintiff as unresolved . On February 22, 2016, the court approved the joint stipulation of the parties regarding the amount of the refund. This stipulation did not refer to any payment of interest. Subsequently the plaintiff moved for interest, claiming that it is entitled to interest under the statutes as a matter of right.
Section 12-268l allows for interest in the discretion of the court on the granting of relief and the showing of payment prior to the granting of relief. Similar provisions in the real estate tax appeal statutes have been interpreted by our Supreme Court. In Wheelabrator Bridgeport, L.P. v. Bridgeport, 320 Conn. 332, 371-72 (2016), the Court concluded that the trial court should consider such factors as the municipality's wrongdoing and the wrongful detention of money in what was " primarily an equitable determination and a matter lying within the discretion of the trial court." (Internal quotation marks omitted.) The Court quoted from The Loomis Institute v. Windsor, 234 Conn. 169, 181, 661 A.2d 1001 (1995), in reaching this conclusion. The plaintiff has not presented any evidence at all that meets the standards set forth in Wheelabrator .
As our Supreme Court has noted, " [w]e have consistently held that may is directory rather than mandatory . . . The word may, unless the context in which it is employed requires otherwise, ordinarily does not connote a command. Rather, the word generally imports permissive conduct and the conferral of discretion." (Citation omitted; internal quotation marks omitted.) Office of Consumer Counsel v. Dept. of Public Utility Control, 252 Conn. 115, 122, 742 A.2d 1257 (2000). " The use of the word shall in conjunction with the word may confirms that the legislature acted with complete awareness of their different meanings . . . and that it intended the terms to have different meanings." (Citations omitted; internal quotation marks omitted.) Id.
Moreover, here the court did not grant relief, but merely approved a stipulation negotiated by the parties. " A stipulated judgment is not a judicial determination of any litigated right . . . It may be defined as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction . . . [It is] the result of a contract and its embodiment in a form which places it and the matters covered by it beyond further controversy . . . The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute or disputes at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement." (Internal quotation marks omitted.) Portfolio Recovery Associates, LLC v. Healy, 158 Conn.App. 113, 118, 118 A.3d 637 (2015).
The court in its December 2, 2013 decision did not preclude the plaintiff from seeking to litigate the issue of the damages due to it under the court's ruling. It chose rather to negotiate with the DRS to reach a mutually agreed-upon conclusion that the court approved on February 22, 2016.
The parties were free to add a clause on interest to their joint stipulation (or agree to let the court resolve the matter in a subsequent proceeding). Such a clause was not added to the joint stipulation. Cf. Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 50 n.4, 607 A.2d 424 (1992). Therefore, the motion for interest is denied.
The plaintiff asks alternatively that the joint stipulation be opened to add interest. Pursuant to Practice Book § 17-4, the plaintiff must present good cause for the opening of a joint stipulation. The only cause given is that the cited statute, which the court has found inapplicable, requires interest. The court disagrees for the reasons stated above. " A stipulated judgment . . . is not voidable on the ground that it was accepted with reluctance, so long as its procurement was not the result of fraud, duress, or mistake." (Internal quotation marks omitted.) Portfolio Recovery Associates, LLC v. Healy, supra, 158 Conn.App. 118.
The motion to open is therefore denied.
SO ORDERED.