Verrastro v. Sivertsen

• Decision Date: 24 August 1982
• Citation: 448 A.2d 1344,188 Conn. 213
• Court: Connecticut Supreme Court
• Parties: Leonard V. VERRASTRO v. Rolf SIVERTSEN. *

Page 1344

448 A.2d 1344

188 Conn. 213

Leonard V. VERRASTRO v. Rolf SIVERTSEN. ^*

Supreme Court of Connecticut.

Argued June 1, 1982.

Decided Aug. 24, 1982.

Rocco R. P. Perna, Greenwich, for appellant (plaintiff).

Dennis M. Laccavole, Bridgeport, with whom, on the brief, was Peter J. Ottomano, Weston, for appellee (defendant).

Before SPEZIALE, C. J., and PETERS, HEALEY, PARSKEY and SHEA, JJ.

ARTHUR H. HEALEY, Associate Justice.

This appeal arises from the Superior Court's denial of four items contained in the plaintiff's substituted bill of costs. The underlying action involved a suit for damages to the plaintiff's automobile which were sustained in an accident with the defendant's automobile on November 25, 1973. The complaint was filed in November, 1975, seeking $12,000 in damages. On February 1, 1979, the defendant filed an offer of judgment in the amount of $3044.21, which the plaintiff rejected. On January 30, 1980, the plaintiff received a jury verdict of $3044.21 in damages, plus $1317.10 in interest, for a total of $4361.31.

Subsequently, the plaintiff filed a substituted bill of costs with the clerk's office in which he sought, among other things, the costs for three appraisers who assessed and testified to the damages to his automobile and his attorney's fees of $350. These items were denied by the assistant clerk. This decision was upheld by the Superior Court upon appeal. ¹ The Superior Court ruled that pursuant to General Statutes §§ 52-257(a) ² and 52-260(f), ³ costs were limited to those fees incurred for testimony of an expert on the value of land or an appraiser of real estate. It also ruled that the costs for attorney's fees were precluded under General Statutes § 52-195 ⁴ as amended by Public Acts 1979, No. 79-250, § 2. It interpreted that portion of the statute which states "[s]uch costs may include reasonable attorney's fees ..." as referring only to the award of a defendant's attorney's fees by way of costs in situations where the plaintiff's verdict is less than the defendant's offer of judgment.

The plaintiff has raised two issues on appeal. ⁵ First, he claims that the Superior Court erred in its interpretation of General Statutes § 52-257. His position in this regard is that that statute provides an independent basis for awarding appraisal fees in cases where real estate appraisers are not involved. As the basis for this contention, he cites the portion of § 52-257 which provides that "[i]n difficult or extraordinary cases in the superior court ... the court may, in its discretion, make a further allowance to the prevailing party, not to exceed two hundred dollars." (Emphasis added.) The plaintiff claims that this is a "difficult or extraordinary" case which would justify such an award of costs. The plaintiff also takes issue with the Superior Court's interpretation of the language of General Statutes § 52-195. His claim is that the portion of that statute which provides that "[s]uch costs may include reasonable attorney's fees in an amount not to exceed three hundred fifty dollars" is applicable to both plaintiffs and defendants.

The first issue we address is the plaintiff's claim for real estate appraisers' and experts' fees. "Costs are the creature of statute ... and unless the statute clearly provides for them courts cannot tax them." Waterbury v. Macken, 100 Conn. 407, 413, 124 A. 5 (1924), appeal dismissed, 273 U.S. 646, 47 S.Ct. 244, 71 L.Ed. 820 (1926); see also Stradmore Development Corporation v. Commissioner of Transportation, 173 Conn. 112, 119, 376 A.2d 1095 (1977); Bissing v. Turkington, 113 Conn. 737, 739, 157 A. 226 (1931); Lew v. Bray, 81 Conn. 213, 217, 70 A. 628 (1908); Hartford v. Public Utilities Commission, 30 Conn.Sup. 244, 251, 309 A.2d 844 (1973); Drive In & Shop, Inc. v. Redevelopment Agency, 24 Conn.Sup. 390, 391, 191 A.2d 345 (1963); 3 Sutherland, Statutory Construction (4th Ed. Sands) § 67.09. In the present action, the statute pursuant to which the plaintiff is seeking his costs for appraisal fees; General Statutes § 52-257; explicitly states that "[i]n difficult or extraordinary cases in the superior court ... the court may, in its discretion, make a further allowance to the prevailing party ...." A plain reading of this provision of the statute indicates that it is for the trial court, in the first instance, to determine in its discretion whether a particular case is "difficult or extraordinary" and, therefore, one warranting a further allowance of two hundred dollars to the prevailing party. A review of the record in this case reveals that the first time that the plaintiff raised the issue that this case was "difficult or extraordinary" was in his oral argument before the Superior Court upon appeal from the clerk's denial of costs for appraisal fees. ⁶

Pursuant to Practice Book § 3063, this court is not bound to consider any claim of error unless it was distinctly raised and decided by the trial court. State v. Packard, 184 Conn. ---, ---, ---, 439 A.2d 983 (1981); Burritt Mutual Savings Bank v. Tucker, 183 Conn. ---, ---, ---, 439 A.2d 396 (1981); New Haven Savings Bank v. Valley Investors, 174 Conn. 77, 84, 384 A.2d 321 (1977). Moreover, the plaintiff has not included this claim in his preliminary statement of issues as required by our rules of practice. Practice Book § 3012(a); see Presutti v. Presutti, 181 Conn. 622, 626, 436 A.2d 299 (1980). Under the circumstances, this claim is not properly before us and will not be considered. Practice Book § 3063.

The second issue raised by the plaintiff is that the Superior Court erred in not awarding him attorney's fees pursuant to General Statutes § 52-195. That statute provides, in pertinent part, that "the plaintiff, unless he recovers more than the sum named in [the defendant's Offer of Judgment], with interest from its date, shall recover no costs accruing after he received notice of the filing of such offer, but shall pay the defendant's costs accruing after said time. Such costs may include reasonable attorney's fees in an amount not to exceed three hundred fifty dollars." The determinative issue for the purpose of this appeal is whether the sentence beginning with the phrase "[s]uch costs may include reasonable attorney's fees," modifies only the term "the defendant's costs" in the immediately preceding clause in the statute, or whether it implies that the plaintiff may also receive costs when he recovers more than the defendant's offer of judgment. Pursuant to the former interpretation, which was adopted by the trial court, the only party entitled to attorney's fees under this statute would be a defendant who has submitted an offer of judgment which was rejected by the plaintiff and which offer was eventually determined to be greater than the judgment awarded by the trier of fact, with interest accruing from the date of the offer.

The plaintiff claims that the portion of the statute concerning attorney's fees modifies the entire sentence immediately preceding it, and not just the preceding clause dealing with the defendant's costs. Adopting this position would allow a plaintiff to be eligible for attorney's fees in any case where a defendant has made an offer of judgment that the plaintiff has rejected which turns out to be less than the judgment awarded by the trier of fact. We hold, to the contrary, that the trial court's interpretation of § 52-195 was correct.

A fundamental tenet of statutory construction is that "statutes are to be construed to give effect to the apparent intention of the lawmaking body." Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 6, 434 A.2d 293 (1980); see also State v. Campbell, 180 Conn. 557, 561, 429 A.2d 960 (1980); Green v. Warden, 178 Conn. 634, 638, 425 A.2d 128 (1979); Bell v. Planning & Zoning Commission, 173 Conn. 223, 226, 377 A.2d 299 (1977); McAdams v. Barbieri, 143 Conn. 405, 415-16, 123 A.2d 182 (1956). Where the words of a statute are clear, the task of a reviewing court is merely to apply the directive of the legislature since "where the wording is plain, courts will not speculate as to any supposed intention because the question before a court then is not what the legislature actually intended but what intention it expressed by the words that it used." Robinson v. Unemployment Security Board of Review, supra, 181 Conn. 6, 434 A.2d 293; see also Doe v. Institute of Living, Inc., 175 Conn. 49, 68, 392 A.2d 491 (1978) (Bogdanski, J., dissenting); Eason v. Welfare Commissioner, 171 Conn. 630, 634, 370 A.2d 1082 (1976), cert. denied sub nom. Eason v. Maloney, 432 U.S. 907, 97 S.Ct. 2953, 53 L.Ed.2d 1079 (1977); Sillman v. Sillman, 168 Conn. 144, 147, 358 A.2d 150 (1975); Connecticut Light & Power Co. v. Walsh, 134 Conn. 295, 301, 57 A.2d 128 (1948); 2A Sutherland, Statutory Construction (4th Ed. Sands) § 45.05.

The intent of the statute in question is not immediately apparent from its language since the term "[s]uch costs" could possibly apply to both plaintiffs' and defendants' costs. "When two constructions are possible, courts will adopt the one which makes the statute effective and workable ...." Muller v. Town Plan & Zoning Commission, 145 Conn. 325, 331, 142 A.2d 524 (1958); see also Stoni v. Wasicki, 179 Conn. 372, 376, 426 A.2d 774 (1979); Kron v. Thelen, 178 Conn. 189, 192, 423 A.2d 857 (1979); Kellems v. Brown, 163 Conn. 478, 506, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S.Ct. 911, 34 L.Ed.2d 678 (1973). "A statute should be construed so that no word, phrase or clause will be rendered meaningless. Robinson v. Unemployment Security Board of Review, [supra, 181 Conn. 7, 434 A.2d 293]; State ex rel. Kennedy v. Frauwirth, 167 Conn. 165, 168, 355 A.2d 39 [1974]." C. White & Son, Inc. v. Rocky Hill, 181 Conn. 114, 122, 434 A.2d 949 (1980). The factors that this court looks to in construing a statute include "its legislative history, its language, the purpose it is to serve, and the circumstances...