Opinion
No. CV-02-0815455 S
November 4, 2003
MEMORANDUM OF DECISION
This matter concerning the alleged liability of the defendant, Burton Chalker (Chalker), to repay the plaintiff, the State of Connecticut (State), for the full amount of public assistance provided to and on behalf of Chalker's minor child, came before the court at the hearing in damages trial list on September 29, 2003. Thereafter, the court directed the State to submit a memorandum of law in support of its claim for an award of offer of judgment interest. The State and Chalker submitted memoranda of law. After having reviewed the pleadings, the evidence, and the parties' memoranda, the court directs that judgment may enter for the plaintiff, but finds that, pursuant to General Statute § 52-192a and Practice Book § 17-18, the State is not entitled to an award of either offer of judgment interest or an attorneys fee.
I BACKGROUND
By a one-count complaint dated April 26, 2002, the State seeks damages from Chalker based on his obligation to reimburse it for public assistance provided to and on behalf of Chalker's minor child. Chalker appeared through counsel and filed an answer, dated November 22, 2002, in which he admitted the allegations of paragraph 2 of the complaint, which state that "[p]ursuant to C.G.S. § 17b-93, the Defendant is liable to the Plaintiff for repayment to the Plaintiff of the full amount of the AFDC public assistance provided on behalf of the Defendant's minor child, John Chalker."
On September 30, 2002, the State filed its offer of judgment (#105). Its offer stated, "[t]he Plaintiff in the above entitled action hereby offers to take judgment of the Defendant in the amount of $29,816.96, and to stipulate to a judgment for said sum." As stated in the State's memorandum of law, dated October 16, 2003, page one, this amount represented the sum of the State's claim of $29,638.30 for unreimbursed public assistance, plus $178.66 in costs, for marshal's fees for service of the complaint.
General Statute § 52-257 (a)(7) provides that, in cases in which the amount in demand is not less than fifteen thousand dollars, that the prevailing party shall receive, by way of indemnity, "for the signing and service of process, the legal fees payable therefor, except that a fee shall not be allowed for the return of a subpoena to court."
By motion dated March 11, 2003, the State sought summary judgment against Chalker (#116). By order dated May 12, 2003, the court (Hennessey, J.T.R.) ordered that judgment enter against Chalker as to liability. Thereafter, the matter was claimed to the hearings in damages trial list.
II DISCUSSION A
Calculation of the Debt
Chalker did not appear at the hearing in damages on September 29, 2003 in order to contest the evidence presented by the State as to the amount which Chalker owes. Where a case is tried to the court, without a jury, a claim is deemed abandoned where it is not briefed; see Collins v. Goldberg, 28 Conn. App. 733, 738, 611 A.2d 938 (1992); or argued. See Practice Book § 5-2. Under these circumstances, the court deems Chalker to have abandoned his previous arguments concerning the amount of his debt to the State.
Practice Book § 5-2 provides, "Any party intending to raise any question of law which may be the subject of an appeal must either state the question distinctly to the judicial authority in a written trial brief under Section 5-1 or state the question distinctly to the judicial authority on the record before such party's closing argument and within sufficient time to give the opposing counsel an opportunity to discuss the question. If the party fails to do this, the judicial authority will be under no obligation to decide the question."
In addition, the court notes that, in opposition to the motion for summary judgment, Chalker submitted the affidavit of an attorney who disputed the State's calculation of the debt, based on her assertion that the State did not provide a portion of the monies it claims are owed in repayment. See defendant's memorandum in opposition to plaintiff's motion for summary judgment (#119). Having reviewed her affidavit, the court finds it unpersuasive. Her assertions are conclusory in nature. They are unsupported by references to an applicable statute, regulation or handbook. While she avers that she has extensive experience with the Aid to Families with Dependent Children (AFDC) program, she does not claim to be familiar with the State's methods of record-keeping in cases of this type. The court is not required to credit assertions made in an affidavit. See 2830 Whitney Avenue Corp. v. Heritage Canal Development Assoc., Inc., 33 Conn. App. 563, 568, 636 A.2d 1377 (1994). An argument based on this affidavit was raised in Chalker's memorandum in opposition to the motion, at pages two through four. Other arguments made therein which question the State's calculations are similarly unpersuasive.
After reviewing the evidence, the court concludes that the State has proved that Chalker is liable for the sum of $29,637.30. This represents the resulting figure arrived at by subtracting amounts for which Chalker is to be credited from the amount of assistance provided.
As noted, the State claims that this figure should be $29,638.30. See debt calculation filed on September 29, 2003. However, since the total credit amounts equal $21,010.41, not $21,009.41, the correct amount is $29,637.30 ($50,647.71 minus $21,010.41 equals $29,637.30). According to the State, the credits are determined by adding $20,204.41, $400.00, $101.50, and $304.10. See affidavit of Ann Garland, ¶ 8. The sum of these credits is $21,010.41, not the $21,009.41 claimed by the State.
B
Offer of Judgment Interest
General Statute § 52-192a (b) provides for an award of interest in connection with an offer of judgment. "After trial the court shall examine the record to determine whether the plaintiff made an `offer of judgment' which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in the plaintiff's `offer of judgment,' the court shall add to the amount so recovered twelve per cent annual interest on said amount, . . . computed from the date the complaint in the civil action was filed with the court if the `offer of judgment' was filed not later than eighteen months from the filing of such complaint." General Statute § 52-192a (b). Practice Book § 17-18 contains a similar provision.
Practice Book § 17-18 provides, "Alter trial the judicial authority shall examine the record to determine whether the plaintiff made an `offer of judgment' which the defendant failed to accept. If the judicial authority ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in that plaintiff's `offer of judgment,' the judicial authority shall add to the amount so recovered 12 percent annual interest on said amount, computed as provided in General Statutes § 52-192a . . ."
"The punitive nature of § 52-192a has been recognized repeatedly. An award of interest pursuant to § 52-192a (b) is punitive in nature . . . This interest is mandated when the amount recovered is greater than or equal to the offer of judgment . . . The offer of judgment statute was enacted to promote fair and reasonable pretrial compromises of litigation by penalizing defendants who do not settle cases prior to trial." (Internal quotation marks omitted and citations omitted.) Nunno v. Wixner, 257 Conn. 671, 684, 778 A.2d 145 (2001). "The interest awarded under 52-192a is unrelated to the underlying debt. It is solely related to a defendant's rejection of an advantageous offer to settle before trial and his subsequent waste of judicial resources. A defendant who rejected an offer of judgment that is less than the plaintiff's ultimate recovery is subject to additional interest as a penalty for failing to terminate litigation. Section 52-192a merely uses interest calculated upon the plaintiff's recovery as a convenient measure for assessing that penalty." Paine Webber Jackson Curtis, Inc. v. Winters, 22 Conn. App. 640, 654, 579 A.2d 545, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990).
As noted above, the State's offer of judgment here was not an offer to accept a compromise amount for less than the principal debt. Instead, it offered to take judgment in a sum which it calculated to include the full amount of its claimed damages, plus costs which it had incurred. In its memorandum, it argues that, for the purposes of ascertaining whether offer of judgment interest is to be awarded, the court is to include costs, in addition to the claimed debt, to ascertain whether or not the State has recovered an amount equal to or greater than that stated in its offer of judgment.
Even if the amount of claimed costs, $178.66, is added to the amount found to be due, $29,637.30, the resulting sum of $29,815.96 is $1.00 less than the amount stated in the State's offer of judgment, $29,816.96. Accordingly, the court may not award interest to the State under either General Statute § 52-192a or Practice Book § 17-18, since the State has not recovered "an amount equal to or greater than the sum certain stated in the plaintiff's `offer of judgment.'" General Statute § 52-192a (b).
In addition, the court finds that the costs enumerated by the State may not be added to the amount of the debt to determine whether the State has recovered an amount equal to or greater than the amount stated in its offer of judgment. As a "punitive" statute, § 52-192a should be construed with "reasonable strictness." Freeman v. Alamo Management Co., 221 Conn. 674, 684, 607 A.2d 370 (1992). The court agrees with the analysis which was recently set forth in Hawks v. Reznik, Superior Court, judicial district of Waterbury, Docket No. CV 94-0119515 So. (January 11, 1999, Gill, J.) ( 23 CLR 673), wherein the court found that, for calculations under § 52-192a, costs ought to be excluded from the computation of the amount recovered.
Quoting Crowther v. Gerber Garment Technology, Inc., 8 Conn. App. 254, 269-70, 513 A.2d 144 (1986), the court in Hawks v. Reznik, supra, stated, "Where a claim for a specific remedy, including costs, under a statute [is] alleged in the complaint, any relief awarded under such a claim after trial must be included in the amount of recovery for the purpose of measurement against an offer of judgment made under 52-192a (b)." (Internal quotation marks omitted.) As noted in Crowther v. Gerber Garment Technology, Inc., supra, the statute at issue there, General Statute § 31-72, included recovery of costs as part of the statutory remedy. Here, in contrast, the statute under which the State is proceeding, General Statute § 17b-93, does not include the recovery of costs as a specific remedy. Rather, § 17b-93 (a) provides that "the parents of an aid to dependent children beneficiary, a state-administered general assistance beneficiary or a temporary family assistance beneficiary shall be liable to repay . . . to the state the full amount of any such aid paid to or in behalf of either parent, his spouse, and his child or children."
Practice Book § 18-5 provides for a procedure by which the clerk of the court is authorized to assess the costs to be taxed. In Hawks v. Reznik, supra, the court found that "[t]he case law is absent in the situation where costs were included in the judgment amount in determining prejudgment interest under § 52-192a." As Judge Gill noted there, "[m]any cases refer to the award of costs along with an award of interest." Id. See, for example, Loomis Institute v. Windsor, 234 Conn. 169, 173-74, 661 A.2d 1001 (1995), which treats interest under § 52-192a and costs separately. More recently, our Supreme Court noted that, under § 52-192a, the "amount recovered" can include interest and attorneys fees, as well as double or treble damages, but did not mention costs. Nunno v. Wixner, supra, 257 Conn. 684.
Practice Book § 18-5(a) provides, "Costs may be taxed by the clerk in civil cases fourteen days after the filing of a written bill of costs provided that no objection is filed. If a written objection is filed within the fourteen day period, notice shall be given by the clerk to all appearing parties of record of the date and time of the clerk's taxation. The parties may appear at such taxation and have the right to be heard by the clerk."
The court is unpersuaded by the State's reference to two Superior Court cases which it claims support its position. Petrozzi v. The Ensign-Bickford Co., Superior Court, judicial district of Hartford at Hartford, Docket No. CV 97-0574903 So. (August 30, 2000, Booth, J.) ( 28 Conn. L. Rptr. 30), is a supplemental judgment, in which the court found that the plaintiff was entitled to offer of judgment interest on a sum which included the verdict, the taxable costs ($3,943.55), and statutory attorneys fees. In that case, the offer of judgment was in the amount of $1,100,000.00. The jury rendered a verdict for the plaintiff in the amount of $3,766,380.94. See Petrozzi v. The Ensign-Bickford Co., Superior Court, judicial district of Hartford at Hartford, Docket No. CV 97-0574903 S (August 18, 2000, Booth, J.) ( 28 CLR 30). Clearly, the taxable costs were not added to the verdict amount to ascertain whether or not the plaintiff had recovered an amount equal to or greater than that stated in the offer of judgment.
The State also refers the court to Bredeau v. Scott, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 01-0446633 So. (December 5, 2002, Silbert, J.) ( 33 CLR 468). There, the question was not whether the costs were to be added in order to ascertain whether the plaintiff had recovered an amount equal to or greater than that stated in the offer of judgment. Rather, there, the plaintiff accepted the defendant's offer of judgment. The court stated that "the only question for resolution by the court is whether a defendant may file an offer of judgment in an amount that specifically includes costs, thereby eliminating the other party's right to seek additional costs upon acceptance." Id. The court disallowed the plaintiff's bill of costs, which sought monies in addition to the amount of the judgment which the defendant offered. There, the defendant's offer stated that it included "any and all interest and costs for judgment." Id.
Here, in contrast to the facts in Bredeau v. Scott, supra, the State's offer of judgment did not inform Chalker that its offer of judgment "specifically includes costs." Its offer of judgment did not mention costs. Thus, Bredeau involved a different issue than that which is before this court.
The court concludes that, based on the applicable law, and the facts of this case, including the terms of the offer of judgment, it cannot add the claimed amount for costs to the amount which the State has proved is owed by Chalker in determining whether offer of judgment interest is to be awarded. Thus, even if the State had proved damages in the claimed amount, $29,638.30, it would be incorrect for the court to add the claimed costs, $178.66, to ascertain whether the State had recovered an amount which triggered offer of judgment interest. The court declines to do so.
Also, since the State has not recovered an amount which entitles it to offer of judgment interest, it is also not entitled to the attorneys fee of $350.00 which the court may award under General Statute § 52-192a (b) and Practice Book § 17-18. In any event, if the State were entitled to offer of judgment interest, such an award would be in the court's discretion.
CONCLUSION
For the foregoing reasons, judgment may enter in favor of the plaintiff in the amount of $29,637.30. The plaintiff did not recover an amount equal to or greater than that stated in its offer of judgment. Accordingly, neither offer of judgment interest or an attorneys fee is awarded. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT