Meadowbrook Ctr., Inc. v. Buchman

• Decision Date: 06 December 2016
• Docket Number: AC 37979
• Citation: 169 Conn.App. 527,151 A.3d 404
• Court: Connecticut Court of Appeals
• Parties: MEADOWBROOK CENTER, INC. v. Robert BUCHMAN

169 Conn.App. 527

151 A.3d 404

MEADOWBROOK CENTER, INC.

v.Robert BUCHMAN

AC 37979

Appellate Court of Connecticut.

Argued September 13, 2016

Officially released December 6, 2016

Juri E. Taalman, with whom, on the brief, was Timothy Brignole, for the appellant (defendant).

Edward M. Rosenthal, for the appellee (plaintiff).

Lavine, Mullins and Bishop, Js.

BISHOP, J.

This appeal requires us to assess the interplay between a legislative mandate based on a public policy and a procedural rule of practice. On appeal, the defendant, Robert Buchman, claims that the trial court incorrectly denied his postjudgment motion for attorney's fees, sought pursuant to General Statutes § 42–150bb, on the basis that his motion for attorney's fees was untimely, pursuant to Practice Book § 11–21.¹ We reverse the judgment of the trial court.

The following undisputed procedural and factual background is pertinent to our consideration of the issue on appeal. The plaintiff nursing home facility, Meadowbrook Center, Inc., brought an action against the defendant based on contract and promissory estoppel relating to its care of the defendant's mother. The admission agreement executed by the plaintiff and the defendant, as a responsible party, contained a clause providing for the responsible party to pay the cost of collection, including reasonable attorney's fees, in the event an overdue account is referred to an agency or attorney for collection. Following a trial to the court, Hon. Robert J. Hale , judge trial referee, judgment was rendered for the plaintiff in the sum of $47,561.15 with attorney's fees to be decided postjudgment.

On appeal, however, this court reversed the judgment and remanded the case to the trial court with direction to render judgment in favor of the defendant. Meadowbrook Center, Inc. v. Buchman , 149 Conn.App. 177, 212, 90 A.3d 219 (2014). The order from this court was dated April 8, 2014. Thereafter, on April 30, 2014, the court, Robaina, J. , rendered judgment for the defendant. The defendant then submitted a bill of costs on May 16, 2014, and, on June 4, 2014, the thirty-fifth day after judgment, the defendant filed a motion for attorney's fees and costs. On January 29, 2015, the court, Wahla, J. , conducted a hearing on the defendant's motion in which he claimed attorney's fees of $74,918.70 and costs of $1337.38. On April 7, 2015, the court issued its decision denying the defendant's motion for attorney's fees on the basis that the motion was not timely. Rejecting the defendant's argument that attorney's fees pursuant to § 42–150bb are a component of damages and, therefore, not subject to the time limits of Practice Book § 11–21, the court stated: "Because I conclude that attorney fees were not a component of damages, the defendant's motion for attorney's fees and costs [is] not timely, hence I am constrained to agree with the plaintiff. The defendant's motion is hereby DENIED."

Following the court's ruling, the defendant filed a motion for reconsideration and reargument on April 17, 2015. In this motion, the defendant argued, inter alia, that the court incorrectly had failed to rule whether the time limit set forth in Practice Book § 11–21 is mandatory or directory. The defendant alleged that he had raised this issue in his memorandum of law in support of attorney's fees and at the hearing on his motion. In response, the plaintiff urged the court to not consider the defendant's motion as, "the defendant wants to rehash the same arguments that he already made which were unpersuasive." By order dated May 12, 2015, Judge Wahla denied the defendant's motion for reconsideration and reargument without comment. This appeal followed.

The defendant claims, in essence, that once the court determined that Practice Book § 11–21 governed the defendant's request for attorney's fees, the court should have determined that the time limitation contained in the rule was directory and, therefore, the court should have exercised its discretion to permit a filing that was five days late and, finally, that the court should have awarded attorney's fees in light of the mandate of § 42–150bb and the fact that the defendant's delay in filing was reasonable and minimal.

Our analysis requires discussion of § 42–150bb, captioned "Attorney's fees in action based on consumer contract or lease," and of Practice Book § 11–21, captioned "Motion for Attorney's Fees." In analyzing these two enactments, we must determine whether realizing the statutory entitlement to attorney's fees, pursuant to § 42–150bb, is necessarily limited by the thirty day filing requirement in Practice Book § 11–21, or whether a trial court has the discretion to excuse a filing delay in order to effectuate the public policy of § 42–150bb. On the basis of the record before us, it is clear that the court did not believe it had such discretion, and, therefore, did not exercise it. Because the interpretation of a statute or rule of practice involves a question of law, our review of the trial court's interpretation is plenary. See Commissioner of Social Services v. Smith , 265 Conn. 723, 734, 830 A.2d 228 (2003).

We first address the statute. Section 42–150bb provides in relevant part: "Whenever any contract or lease entered into on or after October 1, 1979, to which a consumer is a party, provides for the attorney's fee of the commercial party to be paid by the consumer, an attorney's fee shall be awarded as a matter of law to the consumer who successfully prosecutes or defends an action or a counterclaim based upon the contract or lease. ..." (Emphasis added.) The parties do not dispute that, for purposes of the application of § 42–150bb, the plaintiff is a commercial party and the defendant is a consumer. In sum, the provisions of § 42–150bb are applicable to the case at hand.²

Our Supreme Court has stated: "Under § 42–150bb, the court has no latitude to deny [attorney's fees] to a consumer who successfully defends an action brought against him by a commercial party." Rizzo Pool Co. v. Del Grosso , 240 Conn. 58, 66, 689 A.2d 1097 (1997). Attorney's fees are available, rather, by operation of law. Id. Therefore, the entitlement to attorney's fees, pursuant to § 42–150bb, is mandatory.³ Our Supreme Court also has held that mandatory statutory provisions relate to matters of substance. Statewide Grievance Committee v. Rozbicki , 219 Conn. 473, 480–81, 595 A.2d 819 (1991), cert. denied, 502 U.S. 1094, 112 S.Ct. 1170, 117 L.Ed.2d 416 (1992). Section 42–150bb is a legislative vehicle for consumer protection that affords consumers, as a matter of law, awards of reasonable attorney's fees for their successful defense or prosecution of actions based on consumer contracts.⁴ Accordingly, the entitlement to attorney's fees pursuant to § 42–150bb is a mandatory, substantive right.

We now turn to Practice Book § 11–21, which provides in relevant part: "Motions for attorney's fees shall be filed with the trial court within thirty days following the date on which the final judgment of the trial court was rendered." (Emphasis added.) There is no dispute between the parties that the defendant's motion for attorney's fees was untimely as it was not filed within thirty days of judgment, but, rather, five days later. Moreover, the record makes plain that the trial court believed it was constrained to deny the defendant's motion on the basis that it was not timely filed in accordance with § 11–21. The question before us is whether the trial court correctly assumed that the time limitation of § 11–21 is mandatory and not directory.⁵ If the former, then the court had no leeway to exercise its discretion. If the latter, however, the court was required to exercise its discretion to determine whether to excuse the tardiness of the defendant's motion and to make an award of attorney's fees.⁶ Finally, in a case in which the court has discretion to act, but fails to exercise its discretion, that failure alone is error. State v. Martin , 201 Conn. 74, 88, 513 A.2d 116 (1986) ; see also State v. Lee , 229 Conn. 60, 73–74, 640 A.2d 553 (1994) ("[i]n the discretionary realm, it is improper for the trial court to fail to exercise its discretion").

As a general proposition, our decisional law has made it clear that the rules of practice are not intended to enlarge or abrogate substantive rights. See In re Samantha C. , 268 Conn. 614, 639, 847 A.2d 883 (2004). In the case at hand, as we have noted, a consumer's right to attorney's fees pursuant to the mandate of § 42–150bb is substantive as that right represents the core of the statute and the reason for its enactment. Thus, although we recognize the right of the judges of the Superior Court to enact rules of practice for the orderly conduct of the court's affairs, the enforcement of those rules must be accomplished in the light of the substantive rights they are intended to actualize.

Also, in assessing any particular rule of practice, we are guided by the provisions of Practice Book § 1–8, which states: "The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice."

With this foundation in mind, we turn to our analysis of Practice Book § 11–21. At the outset, we note that our Supreme Court has made clear that the proper procedural vehicle for a party seeking attorney's fees in an action based on a consumer contract is by filing a motion pursuant to Practice Book § 11–21. Traystman, Coric & Keramid as, P.C. v. Daigle , 282 Conn. 418, 432, 922 A.2d 1056 (2007) (Traystman ). The reach of Traystman , however, is not as broad as the plaintiff contends. Contrary to the plaintiff's argument, the court in Traystman did not determine whether the thirty day time provision in Practice Book § 11–21 is mandatory. Instead, the court focused its analysis on whether a successful litigant in a consumer contract case could seek...