Gagne v. Vaccaro, 18937.

• Decision Date: 06 May 2014
• Docket Number: No. 18937.,18937.
• Citation: 311 Conn. 649,90 A.3d 196
• Court: Connecticut Supreme Court
• Parties: J. William GAGNE, Jr. v. Enrico VACCARO.

311 Conn. 649

90 A.3d 196

J. William GAGNE, Jr.

v.Enrico VACCARO.

No. 18937.

Supreme Court of Connecticut.

Argued Oct. 25, 2013.

Decided May 6, 2014.

Peter A. Ventre, Hartford, for the appellant (plaintiff).

Eugene A. Skowronski, Ansonia, for the appellee (defendant).

ZARELLA, EVELEIGH, McDONALD, ESPINOSA and KELLER, Js.

ZARELLA, J.

The present action is the culmination of a disagreement between two attorneys that has lasted decades. The plaintiff, J. William Gagne, Jr., appeals from the judgment of the Appellate Court, which concluded that General Statutes § 51–183c¹ required Hon. Anthony V. DeMayo, judge trial referee, to recuse himself from presiding over a hearing regarding the reasonableness of attorney's fees. The Appellate Court determined that this conclusion was dispositive of the appeal and remanded the case to the trial court for consideration of the defendant's other claims. ² We granted the plaintiff's petition for certification to appeal, limited to the following issue: “Did the Appellate Court properly conclude that ... § 51–183c required [Judge DeMayo] to recuse [him]self from presiding over the hearing on the plaintiff's motion for attorney's fees?” Gagne v. Vaccaro, 304 Conn. 907, 39 A.3d 1118 (2012). We do not reach this claim, or any of the defendant's alternative grounds for affirmance with respect to Judge DeMayo's recusal, however, because we conclude that these claims are moot.³ We therefore remand the case to the Appellate Court with direction to dismiss the appeal as to the recusal issue and to consider the defendant's remaining claims.

The complete procedural history of this case is set forth in Gagne v. Vaccaro, 133 Conn.App. 431, 433–36, 35 A.3d 380 (2012). We summarize only the history relevant to the present appeal. “On May 28, 2008, the plaintiff filed a motion for appellate attorney's fees incurred in responding to the defendant's second appeal. On June 16, 2008, the defendant filed a motion to dismiss the plaintiff's motion for attorney's fees or, in the alternative, an objection to the motion for attorney's fees. On September 3, 2008, [Judge DeMayo] granted the plaintiff's motion for ... attorney's fees incurred in the defendant's second appeal. On September 18, 2008, the defendant filed a motion to reargue and for reconsideration of the award of attorney's fees, which [Judge DeMayo] denied.

“The defendant filed his third appeal in this matter on October 10, 2008, from [Judge DeMayo's] award of attorney's fees. On December 8, 2009, [the Appellate] [C]ourt affirmed in part and reversed in part [Judge DeMayo's] September 3, 2008 [award of] ... attorney's fees. See Gagne v. Vaccaro, 118 Conn.App. [at] 367, [373] 984 A.2d 1084 (2009). [The Appellate] [C]ourt held that [Judge DeMayo] had the authority, pursuant to General Statutes § 52–249, to award appellate attorney's fees but that the court should have held an evidentiary hearing as to the reasonableness of the fees. Id. [at, 371, 373, 984 A.2d 1084]. [The Appellate] [C]ourt thus reversed the judgment in part and remanded the matter as to the award of attorney's fees, with direction to conduct a hearing as to the reasonableness of the plaintiff's requested fees. Id. [at], 373 .

“The present appeal concerns the matters [that] occurred following [the Appellate] [C]ourt's remand to the trial court in December, 2009. Following [the Appellate] [C]ourt's remand, the plaintiff filed a motion for appellate attorney's fees incurred in responding to the defendant's third appeal and a motion for an order that the hearing ordered by [the Appellate] [C]ourt would occur at the same time as the hearing on [the plaintiff's] most recent motion for attorney's fees. The defendant filed objections to the plaintiff's motions for appellate attorney's fees in connection with the second and third appeals. In addition, the defendant filed a deposition notice and a subpoena seeking the production of numerous documents from the plaintiff's attorney. On March 9, 2010, [Judge DeMayo] granted the plaintiff's motions for a protective order and to quash the subpoena [and] ... overruled the defendant's objection thereto.

“Thereafter, on March 18, 2010, the defendant filed a motion to disqualify [Judge DeMayo] from hearing the plaintiff's motions for appellate attorney's fees.” (Footnote omitted.) Gagne v. Vaccaro, supra, 133 Conn.App. at 434–35, 35 A.3d 380. The defendant argued that Judge DeMayo should recuse himself pursuant to Practice Book § 1–22⁴ because he previously had ruled on the plaintiff's motion for attorney's fees on September 3, 2008, and the Appellate Court had reversed that ruling in part. “The defendant also filed a motion for a continuance of that hearing [in light of his] motion to disqualify [Judge DeMayo].” Id., at 436, 35 A.3d 380. The plaintiff objected to the defendant's motion to disqualify on the ground that the defendant had not complied with the procedural requirements of Practice Book § 1–23,⁵ which requires that a motion to disqualify be filed no less than ten days prior to the proceeding at issue unless good cause is shown. Specifically, the plaintiff argued that the defendant had received notice on March 9, 2010, that Judge DeMayo would be presiding over the March 23, 2010 hearing but did not file his motion to disqualify until March 18, 2010, only five days before the hearing.

On March 23, 2010, Judge DeMayo addressed the defendant's motion to disqualify prior to considering the plaintiff's motions for attorney's fees incurred in the defendant's second and third appeals. The defendant's counsel argued that, “[p]ursuant to ... Practice Book § 1–22, [the defendant] would respectfully ... request [that] Your Honor disqualify himself from hearing and ruling on this motion since it was the subject of an appeal in which Your Honor's prior ruling was reversed....” The plaintiff's counsel responded: “[W]e did file an objection to [the defendant's] motion to disqualify, and, in effect ... the defendant has ... waived that right to try to even attempt to disqualify you, pursuant to Practice Book [§] 1–23, [which] requires ... that any type of motion to recuse a judge must be filed no less than ten days before the hearing. This motion, as the court knows, was only filed five days before the hearing; [and the defendant did not show] ... good cause....” The trial court then stated: “Well, I think that's a valid objection, but I think there is also the additional factor here that this remand from the Appellate Court is directed at this court, and this isn't the usual situation where the case comes back for retrial, rehearing, or whatever.... So the motion to disqualify is denied.”

The trial court then addressed, inter alia, the defendant's motion for continuance and the reasonableness of the plaintiff's attorney's fees. “On April 14, 2010, Judge DeMayo ... [awarded] the plaintiff $16,980 in appellate attorney's fees for the defendant's second appeal and $9860 for the third appeal.” Gagne v. Vaccaro, supra, 133 Conn.App. at 436, 35 A.3d 380. On June 17, 2010, Judge DeMayo ordered the defendant “to adhere to the order and schedule of payments in the amounts due.” Thereafter, on August 19, 2010, the plaintiff filed a “motion for order and/or contempt” on the ground that the defendant had not made any payments pursuant to Judge DeMayo's June 17, 2010 order. The defendant did not make any payments until September 7, 2010. On September 9, 2010, Judge DeMayo found the defendant in contempt of the June 17, 2010 order and held a hearing regarding sanctions on September 28, 2010. The defendant thereafter appealed to the Appellate Court.

The defendant claimed on appeal to the Appellate Court that Judge DeMayo improperly had declined to recuse himself, in violation of Practice Book § 1–22, and also claimed, for the first time, that Judge DeMayo should have been disqualified pursuant to § 51–183c.⁶ Specifically, the defendant argued that Judge DeMayo had demonstrated “bias” and “hostility” against the defendant in comments made during various proceedings.⁷ The defendant also asserted other claims on appeal to the Appellate Court, which “emanate[d] from” Judge DeMayo's ruling regarding discovery objections and the imposition of interest, as well as a challenge to Judge DeMayo's finding of contempt against the defendant. See Gagne v. Vaccaro, supra, 133 Conn.App. at 433 n. 2, 35 A.3d 380. The plaintiff argued that, pursuant to Practice Book § 1–22, the defendant had waived his right to seek the disqualification of Judge DeMayo because the defendant filed his motion to disqualify less than ten days before the March 23, 2010 hearing and did not show good cause for the delay.

The Appellate Court agreed with the defendant that § 51–183c required Judge DeMayo to recuse himself. Id., at 436, 439, 35 A.3d 380. The Appellate Court reasoned that the language of § 51–183c is “clear and unambiguous” and “explicitly prohibits a judge who tries a case that is thereafter reversed to try the case on remand.” Id., at 437, 35 A.3d 380. The Appellate Court concluded that § 51–183c applied and, therefore, that Judge DeMayo should not have presided over the March 23, 2010 hearing regarding the reasonableness of attorney's fees. See id., at 439, 35 A.3d 380. Accordingly, the Appellate Court reversed Judge DeMayo's award of attorney's fees and his finding of contempt, and remanded the case for a new hearing on the plaintiff's motions for attorney's fees and contempt, and for consideration of the defendant's discovery objections. Id. The Appellate Court specified that “a different trial judge necessarily will hear” the plaintiff's motions for attorney's fees and contempt, and consider his discovery objections. Id., at 433 n. 2, 35 A.3d 380. This certified appeal followed.

On appeal to this court, the plaintiff claims that the Appellate Court incorrectly concluded that Judge DeMayo was required to recuse himself under § 51–183c. The defendant counters that ...