New Milford Board of Education v. New Milford Education Association

• Decision Date: 22 November 2019
• Docket Number: LLICV166013977S
• Citation: New Milford Board of Education v. New Milford Education Association, LLICV166013977S (Conn. Super. Nov 22, 2019)
• Court: Connecticut Superior Court
• Parties: New Milford Board of Education v. New Milford Education Association

New Milford Board of Education v. New Milford Education Association

No. LLICV166013977S

Superior Court of Connecticut, Judicial District of Litchfield, Torrington

November 22, 2019

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Moore, John D., J.

MEMORANDUM OF DECISION ON MOTION FOR COUNSEL FEES(#121)

Hon John D. Moore Judge.

The defendant, New Milford Education Association(Assn.), has moved for counsel fees pursuant to General Statutes § 10-153m(#121).The Assn. was successful, both at the trial court level, and before the Supreme Court, in fending off the plaintiff, New Milford Board of Education’s(Board’s), motion to vacate an arbitration award.In fact, the Supreme Court granted the Assn.’s motion to confirm this arbitration award.In support of its motion for attorneys fees, the Assn. cited to the relevant provisions of § 10-153m and submitted affidavits from two attorneys concerning the work that they performed on the appeal to the Supreme Court.Attorney Martin Gould submitted an affidavit swearing that he performed 159.75 hours of work at the rate of $250 per hour, for a total of $39,937.50.SeeGouldAff., ¶6, May 17, 2019.Attorney Adrienne DeLucca submitted an affidavit indicating that she is a "salaried house counsel for the Connecticut Education Association," and that she performed 91.75 hours of work at an internal charge-back rate of $223.25 per hour, for a total of $20,483.19.DeLuccaAff ¶6, May 16, 2019.

The Board filed a written objection to this motion (#124).In support of its objection, the Board cited four unpublished Superior Court decisions.In three of these decisions the court exercised its discretion under § 10-153m not to award attorneys fees.In the fourth decision, court did not award attorneys fees for legal work incurred during the trial court’s review of an arbitration award, but granted a modest award of attorneys fees, just over $6,000, for services rendered on appeal of the trial court’s decision.In further support of its objection, the Board argued that black letter case law concerning the American rule should inform the court’s decision concerning the awarding of attorneys fees under § 10-153m.Specifically, the Board contended that because the American rule applies broadly to requests for attorneys fees under our jurisprudence, a party seeking attorneys fees under § 10-153m must demonstrate that its opponent was dilatory, or engaged in bad faith or harassing litigation conduct.Additionally, the Board argued that the court should decline to award attorneys fees because the questions involved in the appeal were issues of great public importance, as evidenced by the Supreme Court’s decision to accept the transfer of this case from the Appellate Court.

The court heard argument on this motion during short calendar on September 3, 2019.For the reasons set forth below, the court grants this motion and orders the Board to pay $25,000 in attorneys fees to the Assn.

Neither party disagrees with the conclusion that the governing statute grants the trial court discretion to award attorneys fees.Section 10-153m, the statute providing for an award of attorneys fees in cases brought to vacate or confirm an arbitration award between a teachers’ union and a board of education, clearly gives the court discretion to award attorneys fees, but provides no guidance as to how the court should exercise this discretion.Specifically, the statute posits in relevant part that in "any action brought pursuant to section 52-418 to vacate an arbitration award rendered in a controversy between a board of education and a teacher or the organization which is the exclusive representative of a group of teachers, or to confirm pursuant to section 52-417, such an arbitration award, reasonable attorneys fees and costs may be awarded in accordance with the following: (1) Where the board of education moves to vacate an award and the award is not vacated, the court may award reasonable attorneys fees and costs" to the prevailing party.General Statutes § 10-153m.This statutory provision grants the court discretion to award attorneys fees, but does not provide further guidance.

In the absence of such guidance, the Board contended that the court should first refer to the four unpublished cases cited by the Board.In each of these cases, however, the trial court addressed the issue of discretion in merely telegraphic fashion.

In the first case, citing a "legitimate concern" that the arbitrator had read into the collective bargaining agreement a provision that did not exist, the court held that "there was a valid reason for the board to test the matter in court," and, as a result, did not award attorneys fees to the teachers’ union.Cheshire Board of Education v. Education Assn. of Cheshire, Superior Court, Judicial District of New Haven, Docket No. CV- 94-0363645-S, 1995 WL 27495, *3(January 13, 1995, Booth, J.).

In the second case, the trial court declined to award attorneys fees to the teachers’ association because the issues before the arbitrator were "complex and vexing" and because the court did not find that the board had acted in bad faith or in a dilatory fashion.Seymour Board of Education v. Seymour Education Assn., Superior Court, Judicial District of Ansonia-Milford, Docket No. CV- 00071043-S, 2001 WL 103899, *5(January 18, 2001, Arnold, J.).

In the third case, the trial court declined to award attorneys fees to the teachers’ federation for the appeal to the trial court because it found that the board had acted under the applicable statutory authority to seek to vacate an arbitration award in "good faith" on its belief that the arbitrator had demonstrated partiality and had acted beyond the scope of the submission to him.Wethersfield Federation of Teachers v. Wethersfield Board of Education, Superior Court, Judicial District of Hartford, Docket No. CV- 98-0580301-PJR, 2001 WL 1331283, *1(October 11, 2001, Dyer, J.).The court also declined to award attorneys fees because the prevailing party sought them in untimely fashion.Id.The court reversed course on the award of attorneys fees for the appeal of the trial court’s decision, awarding just over $6,000 because the public policy of the state favors the finality of arbitration awards and because the teachers’ federation provided early notice of its intent to seek attorneys fees if it prevailed on appeal.Id.

The holding in the fourth case was conclusory, in that the court simply stated that it "declines to exercise its discretion to award attorneys fees."Bethel Board of Education v. Bethel Education Assn., Superior Court, Judicial District of Danbury, Docket No. CV- 020346863-S, 2003 WL 21771992, *2(July 9, 2003, Carroll, J.).

These cases appear to focus on the reasons why a school board appealed an arbitrator’s decision, and denied attorneys fees when either colorable legal issues existed or when the actions of the board were undertaken either in good faith, or, at least, not in bad faith.As discussed below, a recent Appellate Court case confirms that this focus is misplaced.

The Board’s second argument is that, in the absence of guidance in § 10-153m, the exercise of the court’s discretion should be governed by the American rule.According to the Board, generally speaking, "[w]hen it comes to attorneys fees, Connecticut follows the American rule";Lyme Land Conservation Trust, Inc. v. Platner,325 Conn. 737, 759, 159 A.3d 666(2017); which is that "the prevailing litigant is ordinarily not entitled to collect a reasonable [attorney’s] fee from the loser ... [unless] the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons."(Internal quotation marks omitted.)Lederle v. Spivey,332 Conn. 837, 844, 213 A.3d 481(2019);see alsoRinfret v. Porter,173 Conn.App. 498, 508, 164 A.3d 812(2017).In fact, the Board claimed that the court should not award attorneys fees unless there was "clear evidence that the challenged actions are entirely without color and [are taken] for reasons of harassment or delay or for other improper purposes ..."(Internal quotation marks omitted.)Rinfret v. Porter, supra, 173 Conn.App. 508.

The American rule argument, however, does not apply to the facts of this case.The biggest exception to the American rule, a threshold exception, clearly applies to this case.Connecticut "follows the ... [American] rule that, except as provided by statute or in certain defined exceptional circumstances, the prevailing litigant is ordinarily not entitled to collect a reasonable [attorney’s] fee from the loser."(Emphasis added; internal quotation marks omitted.)Lederle v. Spivey, supra, 332 Conn. 843-44.This threshold exception has been triggered here, as a statutory provision, namely § 10-153m, grants the court the discretion to award attorneys fees to teachers’ unions that succeed when an opposing board of education appeals an arbitrator’s decision.

The legislature provided no indication in § 10-153m that it wanted the court to be governed or even guided by case law concerning the American rule."As a rule, a court must construe a statute as written ... Courts may not by construction supply omissions ... or add exceptions merely because it appears that good reasons exist for adding them ... The intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say ... It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result.That is a function of the legislature."(Internal quotation marks omitted.)Tuxis Ohr’s Fuel, Inc. v. Administrator Unemployment Compensation Act,127 Conn.App. 739, 743-44, 16 A.3d 777(...