Rizzo Pool Co. v. Del Grosso

• Citation: 689 A.2d 1097,240 Conn. 58
• Decision Date: 18 February 1997
• Docket Number: No. 15511,15511
• Court: Supreme Court of Connecticut
• Parties: RIZZO POOL COMPANY, v. Daniel DEL GROSSO et al.

Page 1097

689 A.2d 1097

240 Conn. 58

RIZZO POOL COMPANY, v. Daniel DEL GROSSO et al.

No. 15511.

Supreme Court of Connecticut.

Argued Dec. 5, 1996.

Decided Feb. 18, 1997.

[240 Conn. 59] David L. Gussak, Hartford, for appellant plaintiff.

Shelley M. Weiss, Groton, for appellees defendants.

Before BORDEN, BERDON, KATZ, PALMER and PETERS, JJ.

OPINION

KATZ, Justice.

The sole issue in this appeal is whether, following this court's order (1) reversing the judgment of the trial court in favor of the plaintiff on its complaint in the underlying action and (2) remanding the case with direction to render judgment thereon in favor of the defendants, the trial court properly awarded attorney's fees to the defendants pursuant to General Statutes § 42-150bb. ¹ We affirm the judgment of the trial court.

Because the scope of the issues on this appeal is limited, we need not repeat the extensive factual summary of the underlying action set forth in Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 657 A.2d 1087 (1995). In that decision, this court held that a contract between the plaintiff, Rizzo Pool Company, and the defendants, Daniel and Jo-Ann Del Grosso, to install a swimming pool at the defendants' home was subject to the requirements of the Home Improvement Act (HIA) ² and the Home Solicitation Sales Act (HSSA). ³ Accordingly, we concluded that the trial court had improperly precluded the defendants from establishing their special statutory defenses to the plaintiff's claim of breach of contract. We further concluded that, because the requirements of the HIA are mandatory and must be strictly construed, the plaintiff's undisputed violation of the HIA rendered the contracts unenforceable. Finally, we declared that because the plaintiff had not performed any of the home improvement services contemplated by the contract, the plaintiff could not establish bad faith repudiation of the contract by the defendants or claim restitutionary relief based on a theory of quasi-contract, quantum meruit or unjust enrichment. Accordingly, we concluded that the plaintiff could not recover and that the defendants were entitled to judgment on the complaint.

Following the order by this court that the case be "remanded with direction to render judgment thereon for the defendants," the defendants moved in the trial court for attorney's fees pursuant to § 42-150bb. The plaintiff objected, arguing that the defendants had not preserved the issue of attorney's fees in their initial appeal. ⁴ In addition, the plaintiff claimed that because we had not ordered further proceedings as part of the rescript, the trial court lacked authority to award attorney's fees on remand. The plaintiff further argued that because the contract at issue did not fall within the definition of a consumer contract found in General Statutes § 42-151(b), ⁵ the defendants were not entitled to attorney's fees under § 42-150bb. Finally, the plaintiff argued that, should the trial court nevertheless award attorney's fees, those fees must be subject to the limitations on any such award under General Statutes § 42-150aa. ⁶ The trial court rejected the plaintiff's arguments and, following an evidentiary hearing, awarded attorney's fees of $6400 to Daniel Del Grosso and $7500 to Jo-Ann Del Grosso. This appeal followed. ⁷ We affirm the judgment of the trial court.

I

Although the plaintiff made a number of claims before the trial court, the claims are, for all intents and purposes, simply subparts of a single issue--whether the trial court improperly awarded attorney's fees to the defendants.

We begin with the plaintiff's argument that no procedural basis existed for the trial court's award of attorney's fees. Specifi--

cally, the plaintiff asserts that the

defendants failed to preserve the claim

for attorney's fees at trial in accordance

with Practice Book §§ 285A ⁸ and 4185, ⁹ and before this court as part of their original appeal. Furthermore, in the absence of any order for further proceedings by this court, the plaintiff claims that the trial court was limited to the remand order.

It is uncontested that the defendants had not requested attorney's fees in the trial court. It is also undisputed that in their initial appeal the defendants requested only that the plaintiff's verdict be set aside and that this court either order a new trial or direct a verdict in their favor based upon the violation of the HIA. Although the defendants concede that the first time they made the request for attorney's fees was following this court's remand to the trial court, they nevertheless argue that the trial court properly entertained their motion. We agree with the defendants.

A

We first address the plaintiff's claim of waiver. Section 42-150bb provides for an award of attorney's fees to a consumer who has successfully defended an action. Because in the original proceedings the defendants had been prohibited from presenting any evidence of the plaintiff's violations of the HIA and the HSSA, the statutes upon which they were relying to bring them within § 42-150bb, they never had the opportunity during the trial to seek attorney's fees. Moreover, because the defendants had not been successful, they had neither reason nor opportunity to seek such an award at that time. We do not generally require parties to engage in futile conduct. See Vachon v. Tomascak, 155 Conn. 52, 57, 230 A.2d 5 (1967). Consequently, because the defendants were not in a position to raise the issue of attorney's fees until they succeeded on appeal, we fail to see how they were in a position to have waived their claim. Similarly, there was no reason for the defendants to have raised the issue of an award of attorney's fees before this court. This is not an instance of a party seeking to raise an issue after an appeal that could have been raised in the earlier appeal. See Hartford National Bank & Trust Co. v. Tucker, 195 Conn. 218, 222, 487 A.2d 528, cert. denied, 474 U.S. 845, 106 S.Ct. 135, 88 L.Ed.2d 111 (1985). Moreover, because the defendants had no basis upon which to request an award by the trial court, there was no record upon which to seek review by this court.

Nevertheless, the plaintiff maintains that the defendants could have done one of two things: (1) prior to trial, the defendants could have notified the plaintiff that they would seek an award of attorney's fees should they prevail in defending against the plaintiff's claim; or (2) on appeal, they could have asked this court, in the event they succeeded on appeal, to direct the trial court on remand to award attorney's fees. The plaintiff cites no specific authority to support the assertion that either of these procedures is required, and we have found none. Indeed, unlike the plaintiff's claim or the defendants' counterclaim, to which a request for relief properly attaches, there is no procedural mechanism by which the defendants could have alerted the trial court or the plaintiff to a future conditional request for fees.

As to the plaintiff's second proposal, although the defendants could have included a footnote in their brief alerting this court to their interest in obtaining attorney's fees upon our remand, there is nothing to suggest that the rescript would have been any different. For the reasons set forth in part I B of this opinion, under the circumstances of this case the order to render judgment for the defendants properly left the issue of all postjudgment proceedings to the trial court, which had the evidence it needed to make the initial determination that attorney's fees were proper. Cf. Jacobs v. Healey Ford-Subaru, Inc., 231 Conn. 707, 730-31, 652 A.2d 496 (1995) (holding trial court could not entertain request for attorney's fees when consumer contract upon which claim was based had not been introduced into evidence).

B

The plaintiff next argues that the terms of our rescript deprived the trial court of the authority to award attorney's fees, despite the fact that they are available as a matter of law. We are not persuaded.

"Well established principles govern further proceedings after a remand by this court. In carrying out a mandate of this court, the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion.... This is the guiding principle that the trial court must observe.... Compliance means that the direction is not deviated from. The trial court cannot adjudicate rights and duties not within the scope of the remand.... It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning. No judgment other than that directed or permitted by the reviewing court may be rendered, even though it may be one that the appellate court might have directed. The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein." (Emphasis in original; internal quotation marks omitted.) Halpern v. Board of Education, 231 Conn. 308, 311, 649 A.2d 534 (1994).

We have also cautioned, however, that our remand orders should not be construed "so narrowly as to prohibit a trial court from considering matters relevant to the issues upon which further proceedings are ordered that may not have been envisioned at the time of the remand.... So long as these matters are not extraneous to the issues and purposes of the remand, they may be brought into the remand hearing." (Citation omitted; internal quotation marks omitted.) Id., at 313, 649 A.2d 534.

The relevant circumstances in this case necessarily include the fact that the attorney's fees statute, § 42-150bb, became applicable to the defendants only after the trial court had rendered judgment in their favor, postappeal. Consequently, the trial court was required to look carefully at the words of the appellate mandate in conjunction with the language of the statute in question. Under § 42-150bb, ...