Gagne v. Vaccaro, No. 30427.
| Decision Date | 08 December 2009 |
| Docket Number | No. 30427. |
| Citation | 118 Conn.App. 367,984 A.2d 1084 |
| Court | Connecticut Court of Appeals |
| Parties | J. William GAGNE, Jr. v. Enrico VACCARO. |
Eugene A. Skowronski, Ansonia, for the appellant (defendant).
Peter A. Ventre, Hartford, for the appellee (plaintiff).
BISHOP, ALVORD and DUPONT, Js.
In this foreclosure action, the defendant, Enrico Vaccaro, appeals challenging the trial court's award of appellate attorney's fees, pursuant to General Statutes § 52-249, to the plaintiff, J. William Gagne, Jr. On appeal, the defendant claims that § 52-249 does not authorize appellate attorney's fees, and, even if it does, the amount of fees awarded was unreasonable. Although we conclude that § 52-249 does authorize an award of appellate attorney's fees, because the court improperly denied the defendant an evidentiary hearing to challenge the reasonableness of the fees, we affirm in part and reverse in part the judgment of the trial court.
The following factual and procedural background is relevant to the resolution of the defendant's appeal. The plaintiff sought to foreclose a judgment lien on certain property owned by the defendant. On July 26, 2006, the court rendered judgment of strict foreclosure of the plaintiff's lien. The defendant subsequently filed an appeal from the judgment of strict foreclosure, and this court affirmed the judgment of the trial court. See Gagne v. Vaccaro, 107 Conn.App. 905, 945 A.2d 1071 (2008).
On May 28, 2008, the plaintiff filed a motion for appellate attorney's fees incurred in defending the defendant's appeal. The plaintiff's motion was accompanied by an affidavit delineating the fees requested. On September 3, 2008, the court granted the motion for appellate attorney's fees in the amount of $16,980. The court did not issue a memorandum of decision but noted that "no objection was raised as to the reasonableness of the fees requested." The court subsequently denied the defendant's motion to reargue and for reconsideration. In doing so, the court stated that the defendant had failed to specify what he was objecting to, in terms of the charges listed in the plaintiff's affidavit of attorney's fees, and stated that it found the charges reasonable. This appeal followed.
On appeal, the defendant first claims that the court did not have the authority to award appellate attorney's fees in a foreclosure action pursuant to § 52-249. We disagree.
(Internal quotation marks omitted.) Russo Roofing, Inc. v. Rottman, 86 Conn.App. 767, 775, 863 A.2d 713 (2005).1
Connecticut case law follows the general rule, frequently referred to as the "American Rule," that attorney's fees are not allowed to the prevailing party as an element of damages unless such recovery is allowed by statute or contract. Marsh, Day & Calhoun v. Solomon, 204 Conn. 639, 652-53, 529 A.2d 702 (1987). Section 52-249(a) provides in relevant part: "The plaintiff in any action of foreclosure of a mortgage or lien, upon obtaining judgment of foreclosure, when there has been a hearing as to the form of judgment or the limitation of time for redemption, shall be allowed the same costs, including a reasonable attorney's fee, as if there had been a hearing on an issue of fact...." Section 52-249(a) has been construed as "succinctly and unambiguously" providing "for the allowance of attorney's fees in actions for foreclosure of mortgages or liens." (Internal quotation marks omitted.) Original Grasso Construction Co. v. Shepherd, 70 Conn.App. 404, 418, 799 A.2d 1083, cert. denied, 261 Conn. 932, 806 A.2d 1065 (2002).
Although § 52-249 provides for attorney's fees in foreclosure actions, it does not specifically provide for appellate attorney's fees. We find guidance, however, in decisions regarding other statutes that do not specifically provide for appellate attorney's fees. See, e.g., Traystman, Coric & Keramidas, P.C. v. Daigle, 282 Conn. 418, 922 A.2d 1056 (2007) (); Miller v. Kirshner, 225 Conn. 185, 621 A.2d 1326 (1993) (); Tracey v. Tracey, 97 Conn.App. 278, 903 A.2d 679 (2006) (); Crowther v. Gerber Garment Technology, Inc., 8 Conn. App. 254, 513 A.2d 144 (1986) (); Conservation Commission v. Price, 5 Conn.App. 70, 496 A.2d 982 (1985) (). Section 52-249 provides for attorney's fees in a foreclosure "action." Consistent with the cases cited previously, we construe the provision for attorney's fees in § 52-249 as extending to attorney's fees incurred on appeal as well as at the trial level.
The defendant contended in his supplemental objection to the plaintiff's motion for appellate attorney's fees that the phrase "upon obtaining judgment of foreclosure" contained in § 52-249 indicates that the fees are tied to the time of judgment and, therefore, cannot be interpreted as permitting appellate attorney's fees. We view that phrase, however, not as a temporal limitation but merely a condition for obtaining such an award. In other words, the plaintiff must obtain a judgment in its favor to be entitled to counsel fees. Accordingly, we conclude that because § 52-249 provides for attorney's fees in a foreclosure "action" and does not restrict the award to fees incurred at trial the court had the authority to award appellate attorney's fees pursuant to § 52-249.
We now turn to the defendant's second claim, which is that the court improperly determined that the fees claimed by the plaintiff were reasonable. (Citations omitted; internal quotation marks omitted.) Commission on Human Rights & Opportunities v. Sullivan, 285 Conn. 208, 237-38, 939 A.2d 541 (2008).
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