Hylton v. Gunter ( 2014 )

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RICHARD HYLTON v. GARFIELD GUNTER ET AL.
(SC 19159)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Robinson, Js.
Argued April 23—officially released September 9, 2014
Houston Putnam Lowry, with whom, on the brief,
was Julie A. Morgan, for the appellant (named
defendant).
Gerald M. Beaudoin, with whom, on the brief, was
Francisco A. Cardona, for the appellee (plaintiff).
Opinion
ROBINSON, J. The sole issue in this certified appeal
is whether we should overrule Lord v. Mansfield, 50
Conn. App. 21, 717 A.2d 267, cert. denied, 247 Conn.
943, 723 A.2d 321 (1998), in which the Appellate Court
held that a judgment is not final for purposes of appeal
under General Statutes § 52-2631 when the trial court
has awarded, but not yet determined the amount of,
common-law punitive damages, which are limited under
Connecticut law to attorney’s fees and certain litigation
costs. See, e.g., Waterbury Petroleum Products, Inc. v.
Canaan Oil & Fuel Co., 193 Conn. 208, 237–38, 477
A.2d 988 (1984). The defendant Garfield Gunter2
appeals, upon our grant of his petition for certification,3
from the judgment of the Appellate Court dismissing
his appeal, pursuant to Lord, from the judgment of
the trial court awarding the plaintiff, Richard Hylton,
$342,648 in compensatory damages, and ‘‘ ‘punitive
damages in the form of attorney’s fees’ ’’ on the counts
of his complaint alleging, inter alia, fraud and civil theft.
Hylton v. Gunter, 142 Conn. App. 548, 551, 66 A.3d 517(2013). We agree with the defendant’s claim that Lord
was wrongly decided because, among other reasons, it
is inconsistent with this court’s decision in Paranteau
v. DeVita, 208 Conn. 515, 523, 544 A.2d 634 (1988),
which adopted the ‘‘bright line rule’’ that ‘‘a judgment
on the merits is final for purposes of appeal even though
the recoverability or amount of attorney’s fees for the
litigation remains to be determined.’’ Accordingly, we
reverse the judgment of the Appellate Court.
The record and the Appellate Court’s opinion reveal
the following relevant facts and procedural history. The
plaintiff and the defendant are equal members of Pro-
gressive Electric & Telecommunications, LLC (Progres-
sive). The plaintiff stopped working for Progressive in
July, 2008, leaving the defendant to manage its opera-
tions and finances. After the plaintiff learned that the
defendant was misappropriating Progressive’s moneys
for his own personal use, he brought this action seeking
damages from the defendant in an eight count complaint
alleging fraud, negligence, breach of contract, unjust
enrichment, civil theft, conversion, breach of fiduciary
duty, and breach of the implied duty of good faith and
fair dealing. See Hylton v. Gunter, supra, 142 Conn.
App. 551 and n.3. The case was tried to the court. See
id., 550–51.
‘‘On March 14, 2011, the trial court issued a memoran-
dum of decision in which it found in favor of the plaintiff
on the eight counts of his complaint and awarded him
$342,648 in compensatory damages. The court also
found that the plaintiff was entitled to ‘punitive damages
in the form of attorney’s fees’ on the counts alleging
fraud, civil theft, breach of fiduciary duty, and breach
of the implied duty of good faith and fair dealing,4 and
it instructed the plaintiff to file an affidavit of attorney’s
fees within thirty days. On April 6, 2011, the defendant
filed this appeal [in the Appellate Court]. On May 20,
2011, after a hearing, the trial court awarded the plaintiff
$23,400 in punitive damages, which represented the
amount claimed in attorney’s fees. The defendant did
not amend his appeal subsequent to the trial court
determining the amount of the punitive damages. On
September 12, 2012, this appeal was placed on the
[Appellate Court’s] own motion calendar for dismissal
for lack of a final judgment on the ground that, at the
time the appeal was filed, the trial court had not yet
resolved the plaintiff’s claim for punitive damages. After
the motion hearing, the [Appellate Court] marked the
matter over and ordered the parties to brief whether
the defendant’s appeal from the March 14, 2011 judg-
ment was an appeal from a final judgment. Both parties
subsequently briefed the issue and argued the issue as
part of this appeal.’’ (Footnotes altered.) Id., 550–51.
The Appellate Court subsequently dismissed the
defendant’s appeal for lack of a final judgment pursuant
to § 52-263. See id., 552–54. The Appellate Court noted
that, in Paranteau v. DeVita, supra, 208 Conn. 522–23,
this court held that ‘‘ ‘a judgment on the merits is final
for purposes of appeal even though the recoverability
or amount of attorney’s fees for the litigation remains
to be determined.’ ’’ Hylton v. Gunter, supra, 142 Conn.
App. 552. The Appellate Court then relied, however, on
its subsequent decision in Lord v. Mansfield, supra, 50
Conn. App. 21, which ‘‘distinguished the reimbursement
of attorney’s fees from the awarding of punitive dam-
ages. Punitive damages . . . serve the purpose of vindi-
cating the public interest and deterring others from
committing similar wrongs. . . . This court held that
an appeal taken prior to a determination by the trial
court as to the recoverability and amount of punitive
damages was not an appeal from a final judgment.’’
(Citation omitted.) Hylton v. Gunter, supra, 552; see
also id., 550 (‘‘this court does not have subject matter
jurisdiction to decide an appeal prior to a determination
by the trial court of the recoverability and amount of
punitive damages; a judgment is final only after such
a determination is made’’). The Appellate Court then
concluded that, because the trial court’s award of attor-
ney’s fees was not made pursuant to an authorizing
statute, but rather, was ‘‘explicitly called . . . punitive
damages, its manifest intention was to award the plain-
tiff punitive damages.’’ Id., 554. Accordingly, the Appel-
late Court followed Lord and dismissed the defendant’s
appeal for lack of a final judgment. Id. This certified
appeal followed. See footnote 3 of this opinion.
On appeal, the defendant argues that the Appellate
Court improperly dismissed his appeal for lack of a
final judgment. Specifically, he relies on this court’s
endorsement of bright line rules in the final judgment
context in Paranteau v. DeVita, supra, 208 Conn. 522–
23, as explained in Benvenuto v. Mahajan, 245 Conn.
495, 498–500, 715 A.2d 743 (1998). The defendant con-
tends that there was a final judgment in this case
because all that remained for the trial court to do was
set the amount of attorney’s fees, despite the fact that
those fees were awarded in the context of common-
law punitive damages rather than pursuant to a
statute. The defendant further contends that the deci-
sion that controlled this case before the Appellate
Court, Lord v. Mansfield, supra, 50 Conn. App. 23–28,
was wrongly decided. He argues that Lord is inconsis-
tent with Paranteau and Benvenuto because the case-
by-case determination regarding the finality of judg-
ments in Lord, which depends on whether an attorney’s
fees order is compensatory and integral to the judgment
on the merits or collateral in nature, spawns confusion.
In response, the plaintiff notes the policy behind the
final judgment rule, namely, discouraging piecemeal
litigation, and relies on the doctrinal distinction
between attorney’s fees awarded pursuant to a statute
and those awarded as punitive damages, in arguing that
the Appellate Court properly followed Lord in dismiss-
ing the defendant’s appeal.5 We agree with the defendant,
and conclude that an appealable final judgment existed
when this appeal was filed, despite the fact that the
trial court had not yet determined the amount of the
attorney’s fees that comprised its common-law punitive
damages award.
‘‘As a preliminary matter, we set forth the standard
of review. The lack of a final judgment implicates the
subject matter jurisdiction of an appellate court to hear
an appeal. A determination regarding . . . subject mat-
ter jurisdiction is a question of law . . . [and, there-
fore] our review is plenary.’’ (Internal quotation marks
omitted.) Khan v. Hillyer, 306 Conn. 205, 209, 49 A.3d
996 (2012).
‘‘The right of appeal is accorded only if the conditions
fixed by statute and the rules of court for taking and
prosecuting the appeal are met. . . . It is . . . axiom-
atic that, except insofar as the legislature has specifi-
cally provided for an interlocutory appeal or other form
of interlocutory appellate review . . . appellate juris-
diction is limited to final judgments of the trial court.
General Statutes § 52-263 . . . .’’ (Internal quotation
marks omitted.) State v. Jamar D., 300 Conn. 764, 770,
18 A.3d 582 (2011).
It is well settled that a ‘‘judgment rendered only upon
the issue of liability without an award of damages is
interlocutory in character and not a final judgment from
which an appeal lies.’’ (Internal quotation marks omit-
ted.) Broadnax v. New Haven, 294 Conn. 280, 297, 984
A.2d 658 (2009); see also, e.g., Balf Co. v. Spera Con-
struction Co., 222 Conn. 211, 212, 608 A.2d 682 (1992);
Stroiney v. Crescent Lake Tax District, 197 Conn. 82,
84, 495 A.2d 1063 (1985). Nevertheless, ‘‘a judgment on
the merits is final for purposes of appeal even though
the recoverability or amount of attorney’s fees for the
litigation remains to be determined.’’ Paranteau v.
DeVita, supra, 208 Conn. 523.
In concluding that a judgment of the trial court award-
ing common-law punitive damages limited to attorney’s
fees is final, despite the fact that the court has not yet
determined the amount of those fees, we begin with a
review of the leading case, Paranteau v. DeVita, supra,
208 Conn. 515. In Paranteau, this court considered
whether an appealable final judgment existed when a
trial court found that the defendant, a landlord, had
violated the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq., and
granted the plaintiffs’ request for attorney’s fees pursu-
ant to the authorizing statute, General Statutes § 42-
110g (d), ‘‘but delay[ed] the determination of their
amount.’’ Id., 517. In holding that this judgment was final
for purposes of appeal,6 this court followed Budinich v.
Becton Dickinson & Co., 486 U.S. 196, 108 S. Ct. 1717,
100 L. Ed. 2d 178 (1988),7 which had resolved a split in
federal authority on point in favor of the majority view,
which was ‘‘a bright line approach which obviates the
need for individual case review through the implemen-
tation of a uniform rule stating that an unresolved issue
of attorney’s fees does not prevent judgment on the
merits from being final and immediately appealable.’’8
Paranteau v. DeVita, supra, 520. This court agreed with
the United States Supreme Court that a ‘‘bright line rule
provides notice that decisions on the merits and those
on attorney’s fees will be treated separately, giving clear
guidance as to when an appeal on the merits must be
taken. We do not believe the timeliness of an appeal
should be based upon retrospective, technical consider-
ations of whether a particular supplemental postjudg-
ment claim for attorney’s fees was collateral to, or an
integral part of, the judgment on the merits. Such a
case-by-case approach promotes, rather than elimi-
nates, uncertainty as to when an appeal on the merits
must be taken.’’9 Id., 522–23. Thus, this court concluded
that ‘‘a judgment on the merits is final for purposes of
appeal even though the recoverability or amount of
attorney’s fees for the litigation remains to be deter-
mined.’’10 Id., 523.
Subsequently, this court decided Benvenuto v. Maha-
jan, supra, 245 Conn. 500, wherein it considered
whether the Appellate Court’s position that ‘‘without
a determination of the amount of the attorney’s fees, a
judgment of strict foreclosure does not constitute
a final appealable judgment,’’11 was consistent with
Paranteau. This court ‘‘acknowledge[d] the analytical
appeal of the position of the Appellate Court. In a strict
foreclosure case, until the amount of attorney’s fees is
set by the court, the total amount of the debt is not
fully determined, and any party wishing to redeem on
his or her law day will not know precisely how much
to pay in order to do so. That reasoning argues with
considerable persuasiveness for a conclusion that, in
such a case, there is no final judgment for purposes of
appeal until attorney’s fees are determined. Thus, a
judgment of strict foreclosure that does not contain a
determination of attorney’s fees does not fit comfort-
ably with traditional notions of finality.’’ Id., 501. Never-
theless, this court concluded in Benvenuto ‘‘that the
bright line rule that we articulated in Paranteau applies
as well to a strict foreclosure case. First, that is ordi-
narily what having a bright line test means: it applies
across the board, even to cases that might not seem
particularly apt for it. Thus, it attempts to relieve the
parties who must live under it from the task of determin-
ing on a case-by-case basis when it applies and when
it does not.’’ Id.
Significantly, in Benvenuto, this court expressly
rejected a narrow reading of the bright line rule of
Paranteau ‘‘to apply only to those claims for attorney’s
fees that arise in postjudgment proceedings, such as
are contemplated by CUTPA, the statute at issue in
that case.’’ Id., 502. Instead, this court emphasized the
‘‘advantages of having and applying a bright line rule
regarding whether an outstanding determination of
attorney’s fees undermines the finality of a judgment
on the merits that is otherwise final,’’ observing that
‘‘[t]here are numerous contexts in which attorney’s fees
may be awarded, including foreclosure actions, actions
on notes or other contracts with attorney’s fees clauses,
and statutory claims that carry with them the potential
for an award of attorney’s fees. In Paranteau, we recog-
nized that in some cases the fees would be integral to
the judgment on the merits and in others they would
be collateral to it. . . . By opting for a bright line rule,
we implicitly recognized that there would be some
cases—indeed, this is such a case—in which the appli-
cation of the bright line rule would mean that an attor-
ney’s fees award that would otherwise be considered
integral to the judgment on the merits would neverthe-
less be severable from that judgment for purposes of
finality.’’ (Citation omitted.) Id. The court also noted
that ‘‘reading Paranteau narrowly, so as to apply only
to a ‘supplemental postjudgment claim for attorney’s
fees’ . . . would require the court and parties in each
case to determine whether the claim fit within that
category. That necessity would significantly reduce the
value of having a bright line rule, which consists largely
of the rule’s clarity and, therefore, its efficiency for both
the court and the parties.’’ (Citation omitted.) Id.,
502–503.
In contrast to Benvenuto, in Balf Co. v. Spera Con-
struction Co., supra, 222 Conn. 211, this court consid-
ered whether an appealable final judgment existed
under Paranteau when the trial court had awarded
damages, but not yet ruled on the plaintiff’s claim of
entitlement to prejudgment interest. The court followed
the United States Supreme Court’s decision in Oster-
neck v. Ernst & Whinney, 489 U.S. 169, 175–77, 109 S.
Ct. 987, 103 L. Ed. 2d 146 (1989), and held that there
was no appealable final judgment when the trial court
had not yet ruled on a postjudgment motion for discre-
tionary prejudgment interest because, first, ‘‘unlike
attorney’s fees, which at common law were regarded
as an element of costs and therefore not part of the
merits judgment . . . prejudgment interest tradition-
ally has been considered part of the compensation due
[the] plaintiff. Second, unlike a request for attorney’s
fees or a motion for costs, a motion for discretionary
prejudgment interest does not rais[e] issues wholly
collateral to the judgment in the main cause of action
. . . nor does it require an inquiry wholly separate
from the decision on the merits . . . . In deciding if
and how much prejudgment interest should be granted,
a district court must examine—or in the case of a
postjudgment motion, reexamine—matters encom-
passed within the merits of the underlying action.
. . . Third, the conclusion that a postjudgment motion
for discretionary prejudgment interest postpones the
finality of a judgment on the merits helps further the
important goal of avoiding piecemeal appellate review
of judgments.’’ (Citation omitted; emphasis added;
internal quotation marks omitted.) Balf Co. v. Spera
Construction Co., supra, 214–15.
This court’s treatment of Paranteau in Benvenuto
and Balf Co. leads us to conclude that an appealable
final judgment existed when the defendant filed the
present appeal, despite the fact that the trial court had
not yet determined the amount of the attorney’s fees
that would comprise the common-law punitive damages
award. In Benvenuto, this court expressly rejected a
narrow reading of Paranteau’s bright line rule that
would have limited its application to postjudgment
claims for attorney’s fees; instead, the court extended it
to the strict foreclosure situation wherein the attorney’s
fees for the action are squarely part of the total debt
amount subject to redemption. Benvenuto v. Mahajan,
supra, 245 Conn. 502–503. Indeed, this court squarely
rejected a distinction between attorney’s fees integral
to a judgment on the merits, and those that are more
collateral in nature. See id., 502. This practically ori-
ented conclusion is consistent with the fact that the
calculation of the attorney’s fees to be awarded in the
present case as common-law punitive damages derives
from evidence separate and apart from the merits of
the case—in contrast to the prejudgment interest at
issue in Balf Co., where the determination of the amount
of prejudgment interest was squarely encompassed
within the damages determined in the main cause of
action. Balf Co. v. Spera Construction Co., supra, 222
Conn. 214–15. Thus, we agree with the United States
Supreme Court that the final judgment ‘‘effect of an
unresolved issue of attorney’s fees for the litigation at
hand should not turn upon the characterization of those
fees by the statute or decisional law that authorizes
them.’’ Budinich v. Becton Dickinson & Co., supra, 486
U.S. 201.
To this end, the plaintiff proffers no reasons, and we
cannot conceive of any, why the benefits of the bright
line rule articulated in Paranteau do not apply equally
in the context of common-law punitive damages, which
are limited under Connecticut law to litigation
expenses, such as attorney’s fees less taxable costs.
See, e.g., Berry v. Loiseau, 223 Conn. 786, 827, 614 A.2d
414 (1992). The assessment a court is required to make
in order to award punitive damages is identical to the
assessment required in any other matter involving a
common-law, contractual, or statutory basis for depar-
ture from the ‘‘American rule,’’ which is the general
principle ‘‘that attorney’s fees and ordinary expenses
and burdens of litigation are not allowed to the success-
ful party . . . .’’12 (Internal quotation marks omitted.)
ACMAT Corp. v. Greater New York Mutual Ins. Co.,
282 Conn. 576, 582, 923 A.2d 697 (2007). Indeed, com-
mon-law punitive damages are akin to statutorily
authorized attorney’s fees in practicality and purpose,
insofar as both ‘‘provide the same relief and serve the
same function’’;13 Harty v. Cantor Fitzgerald & Co., 275
Conn. 72, 99–100, 881 A.2d 139 (2005); namely, fully
compensating injured parties.14 Berry v. Loiseau, supra,
827; see also Harty v. Cantor Fitzgerald & Co., supra,
97–98 (characterizing double damages under General
Statutes § 31-72 as more punitive in nature than com-
mon-law punitive damages); Schoonmaker v. Lawrence
Brunoli, Inc., 265 Conn. 210, 273, 828 A.2d 64 (2003)
(‘‘[a]s long as the court awards attorney’s fees that are
sufficient to cover a plaintiff’s financial obligations to
his or her attorney, such as an existing contingency fee
agreement, the employee still will be made whole by
the award of double damages’’). Thus, our ‘‘practical
approach to the matter suggests that what is of impor-
tance here is not preservation of conceptual consis-
tency in the status of a particular fee authorization
as ‘merits’ or ‘nonmerits,’ but rather preservation of
operational consistency and predictability in the overall
application of [the final judgment rule].’’ Budinich v.
Becton Dickinson & Co., supra, 486 U.S. 202. Accord-
ingly, we conclude that an appealable final judgment
existed when all that remained for the trial court to
do was determine the amount of the attorney’s fees
comprising the common-law punitive damages that it
previously had awarded.15
This brings us, then, to a determination of the vitality
of the Appellate Court’s decision in Lord v. Mansfield,
supra, 50 Conn. App. 21, on which that court was bound
to rely in the present case,16 which held that a judgment
was not final for purposes of appeal when the trial court
had not yet determined the prevailing party’s litigation
expenses for purposes of calculating common-law puni-
tive damages. See Hylton v. Gunter, supra, 142 Conn.
App. 552–53. In our view, the Appellate Court’s conclu-
sion in Lord is particularly inconsistent with this court’s
heavy emphasis on the benefits of bright lines in the
final judgment context in Benvenuto v. Mahajan, supra,
245 Conn. 495, a decision published shortly before the
release of Lord, but not cited therein.17 Finally, in relying
on this court’s decision in Balf Co. v. Spera Construc-
tion Co., supra, 222 Conn. 211, which had held that
there was no final judgment when the trial court had
not yet awarded prejudgment interest, the Appellate
Court in Lord placed improper emphasis on the doc-
trinal source for a statutory award of attorney’s fees,
in contrast to what it deemed to be the compensatory
and more integral purpose of common-law punitive
damages. See Lord v. Mansfield, supra, 25–28. This
distinction failed to consider the common purpose and
effect of both statutory attorney’s fees and common-
law punitive damages, namely, to ensure the full com-
pensation of plaintiffs in mitigation of the effects of the
American rule. See, e.g., Harty v. Cantor Fitzgerald &
Co., supra, 275 Conn. 99–100; Berry v. Loiseau, supra,
223 Conn. 827. Insofar as the analysis in Lord amounts
to a triumph of form over substance, we conclude that
it was wrongly decided and, accordingly, overrule it.
The Appellate Court, therefore, improperly dismissed
the defendant’s appeal for lack of a final judgment.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
consider the merits of the defendant’s claims on appeal.
In this opinion ROGERS, C. J., and PALMER and
EVELEIGH, Js., concurred.
1
General Statutes § 52-263 provides: ‘‘Upon the trial of all matters of fact
in any cause or action in the Superior Court, whether to the court or jury,
or before any judge thereof when the jurisdiction of any action or proceeding
is vested in him, if either party is aggrieved by the decision of the court or
judge upon any question or questions of law arising in the trial, including
the denial of a motion to set aside a verdict, he may appeal to the court
having jurisdiction from the final judgment of the court or of such judge,
or from the decision of the court granting a motion to set aside a verdict,
except in small claims cases, which shall not be appealable, and appeals
as provided in sections 8-8 and 8-9.’’
2
‘‘The other defendant named in the complaint, Progressive Electric &
Telecommunications, LLC, was defaulted for failure to appear and for failure
to appear at trial. Accordingly, we refer in this opinion to . . . Gunter as
the defendant.’’ Hylton v. Gunter, 142 Conn. App. 548, 550 n.1, 66 A.3d 517(2013) (per curiam).
3
We granted the defendant’s petition for certification limited to the follow-
ing issue: ‘‘Did the Appellate Court properly dismiss the . . . defendant’s
appeal for lack of a final judgment?’’ Hylton v. Gunter, 309 Conn. 908, 68
A.3d 663 (2013).
4
The Appellate Court noted that ‘‘the plaintiff, in his complaint, requested
punitive damages as relief in only two of the relevant counts, those alleging
civil theft and fraud. The court awarded punitive damages on four counts.
That determination has not been challenged in this appeal.’’ Hylton v. Gunter,
supra, 142 Conn. App. 551 n.4.
5
The plaintiff puts great stock in the fact that this court denied a petition
for certification to review the Appellate Court’s decision in Lord. See Lord
v. Mansfield, supra, 247 Conn. 943. This reliance is, however, misplaced
because it is well established that the ‘‘denial of a petition for certification
to appeal does not signify that this court approves of or affirms the decision
or judgment of the Appellate Court.’’ Potvin v. Lincoln Service & Equipment
Co., 298 Conn. 620, 653, 6 A.3d 60 (2010).
6
The final judgment issue in Paranteau arose in the context of determining
the timeliness of the defendant’s appeal, which was filed within twenty days
after the trial court’s subsequent ‘‘order determining the amount of attorney’s
fees to be awarded the plaintiffs, but more than twenty days after the trial
court’s judgment on the merits.’’ Paranteau v. DeVita, supra, 208 Conn. 519.
Because the court concluded that an appealable final judgment existed when
the trial court rendered judgment on the merits without determining the
amount of attorney’s fees to be awarded under CUTPA, it also concluded
that the defendant’s appeal, filed more than twenty days after that judgment,
was untimely. Id., 523. The court then concluded that the attorney’s fee
determination is an order that ‘‘may raise a collateral and independent claim
that is separately appealable as a final judgment. . . . Thus, that portion
of the defendant’s . . . appeal challenging the fee award was timely filed
. . . .’’ (Citations omitted.) Id., 523–24.
7
See also Ray Haluch Gravel Co. v. Central Pension Fund of Interna-
tional Union of Operating Engineers & Participating Employers, U.S.
, 134 S. Ct. 773, 777, 187 L. Ed. 2d 669 (2014) (extending Budinich bright
line final judgment rule from attorney’s fees based on statute to those
awarded pursuant to contractual provisions).
8
In contrast, this court noted that the federal ‘‘minority view favors analyz-
ing each case individually to determine whether attorney’s fees were ‘collat-
eral’ to the main cause of action, in which case they would not preclude
the finality and appealability of a judgment on the merits, or whether the
fees were an ‘integral part’ of the merits of the case, thus requiring their
determination before judgment could be deemed final for purposes of
appeal.’’ Paranteau v. DeVita, supra, 208 Conn. 520.
9
In adopting the bright line rule, the court also observed that, ‘‘[f]rom
the standpoint of efficient judicial administration . . . a bright line rule is
far superior to the case-by-case approach’’ given the fact that, ‘‘because it
has jurisdictional consequences, the time of appealability should above all
be clear.’’ Paranteau v. DeVita, supra, 208 Conn. 522. Subsequent case law,
however, has ‘‘clarified that the twenty day time period for filing an appeal,
as provided by Practice Book § 63-1 . . . is not subject matter jurisdictional.
See Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 762–63,
628 A.2d 1303 (1993).’’ Benvenuto v. Mahajan, supra, 245 Conn. 502.
10
The court acknowledged that this bright line rule ‘‘may, in some cases,
lead to ‘piecemeal’ appeals of judgments on the merits and awards of attor-
ney’s fees. The problem of fragmented appeals, however, may be averted
if trial judges delay rendering judgment on the merits until the fee issue is
resolved and dispose of both the merits and attorney’s fees in a single
judgment. . . . If for some reason the question of attorney’s fees must be
decided after the entry of judgment on the merits, we suggest that the trial
court insist upon the prompt filing and disposition of fee requests so that
any pending appeal on the merits of the action may be amended to include
any prospective appeal from a supplemental postjudgment award of attor-
ney’s fees.’’ (Citation omitted; emphasis omitted.) Paranteau v. DeVita,
supra, 208 Conn. 524.
11
This court cited, as an example of the Appellate Court’s position, Con-
necticut National Bank v. L & R Realty, 40 Conn. App. 492, 671 A.2d 1315(1996). Benvenuto v. Mahajan, supra, 245 Conn. 500.
12
In arguing that there is no final judgment in this case, the dissent observes
that litigation costs and attorney’s fees are distinct items when awarded
pursuant to statute, but both are components of common-law punitive dam-
ages, with litigation costs being potentially substantial in amount. See, e.g.,
Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., supra, 193
Conn. 237–38; see also Bridgeport Harbour Place I, LLC v. Ganim, 131
Conn. App. 99, 169, 30 A.3d 703 (plaintiff awarded punitive damages in
amount of $210,039, consisting of $54,600 in attorney’s fees and $155,439
in costs), cert. granted, 303 Conn. 904, 31 A.3d 1179 (2011) (appeal withdrawn
January 27, 2012). We respectfully suggest that, for final judgment purposes,
there is no significant difference, because the calculation of both attorney’s
fees and litigation costs derives from evidence that is collateral to that
considered in the main cause of action. See, e.g., Benvenuto v. Mahajan,
supra, 245 Conn. 502–503.
13
We emphasize that our conclusion in this case is limited to those com-
mon-law punitive damages that compensate a party for the expenses of
litigating his claim for damages; attorney’s fees that themselves form the
basis of a plaintiff’s claim for compensatory damages, such as those occa-
sioned by an insurer’s breach of its duty to defend, are conceptually different
and must be established in order to have an appealable final judgment.
See R. Crummins, ‘‘Judgment on the Merits Leaving Attorney’s Fees Issues
Undecided: A Final Judgment?,’’ 56 Fordham L. Rev. 487, 499–500 (1987);
accord Broadnax v. New Haven, supra, 294 Conn. 297 (no final judgment
when determination postponed on valuation of front pay and lost pension
value claims because their ‘‘resolution . . . was a necessary predicate to
the finality of the judgment . . . because the claims seek compensation for
the alleged wrongful conduct of the defendants, which depend[s] upon an
assessment of the underlying merits of the transaction between the parties’’
[internal quotation marks omitted]); ACMAT Corp. v. Greater New York
Mutual Ins. Co., supra, 282 Conn. 593–94 (noting distinction between
insured’s recoverability of attorney’s fees incurred in defending underlying
action, and those incurred in declaratory judgment action, which require
policyholder to establish bad faith conduct on part of insurer or statutory
or contractual basis for award).
14
By way of background, we note that: ‘‘To furnish a basis for recovery
of punitive damages, the pleadings must allege and the evidence must show
wanton or wilful malicious misconduct, and the language contained in the
pleadings must be sufficiently explicit to inform the court and opposing
counsel that such damages are being sought. . . . If awarded, punitive dam-
ages are limited to the costs of litigation less taxable costs, but, within that
limitation, the extent to which they are awarded is in the sole discretion of
the trier. . . . Limiting punitive damages to litigation expenses, including
attorney’s fees, fulfills the salutary purpose of fully compensating a victim
for the harm inflicted on him while avoiding the potential for injustice which
may result from the exercise of unfettered discretion by a jury. . . . We
have long held that in a claim for damages proof of the expenses paid or
incurred affords some evidence of the value of the services, and if unreason-
ableness in amount does not appear from other evidence or through applica-
tion of the trier’s general knowledge of the [subject matter], its
reasonableness will be presumed.’’ (Citations omitted; internal quotation
marks omitted.) Label Systems Corp. v. Aghamohammadi, 270 Conn. 291,
335–36, 852 A.2d 703 (2004); but cf. Berry v. Loiseau, supra, 223 Conn. 827(common-law punitive damages, ‘‘when viewed in the light of the increasing
costs of litigation, also [serve] to punish and deter wrongful conduct’’).
We also note that, against the backdrop of our ‘‘conservative’’ measure
of common-law punitive damages, ‘‘the legislature has authorized punitive
damage awards for certain causes of action. These statutes fall into three
categories: (1) those that limit the amount of the award to no more than
two times the actual damages incurred; (2) those that designate a specific,
albeit modest, dollar limit for such awards; and (3) those that authorize
punitive damages, but leave the amount of the award to the discretion
of the court.’’ (Footnotes omitted.) MedValUSA Health Programs, Inc. v.
MemberWorks, Inc., 273 Conn. 634, 672, 872 A.2d 423 (Zarella, J., dissenting),
cert. denied sub nom. Vertrue, Inc. v. MedValUSA Health Programs, Inc.,
546 U.S. 960, 126 S. Ct. 479, 163 L. Ed. 2d 363 (2005). Punitive damages
under these statutes, particularly under statutes that provide for awards of
fees and costs in addition to punitive damages like CUTPA; see General
Statutes § 42-110g; are distinct from common-law punitive damages because
they ‘‘are not intended merely to compensate the plaintiff for the harm
caused by the defendant but, rather, serve a broader, twofold purpose. First,
they foster private enforcement of unfair trade practices by providing a
reasonable incentive to litigate. . . . Second, they deter the defendant and
others from engaging in future violations of CUTPA.’’ (Citation omitted.)
Vertrue, Inc. v. MedValUSA Health Programs, Inc., supra, 673; see also
Ulbrich v. Groth, 310 Conn. 375, 450–51, 78 A.3d 76 (2013) (discussing
relationship between common-law punitive damages and those awarded
under CUTPA).
15
In arguing that a final judgment does not exist in this case, wherein
common-law punitive damages have been awarded, but not yet calculated,
the dissent notes the substantive proof required to justify the award; see
footnote 14 of this opinion; and contends that ‘‘a challenge to an award of
punitive damages often will relate directly to the merits of the action.’’ We
agree with the dissent with respect to the nature of the proof necessary to
justify an award of common-law punitive damages in the first instance, and
emphasize that our conclusion that a final judgment exists is limited to
cases like this one, wherein common-law punitive damages have been
awarded, and all that remains for the trial court to do is to find the amount
of that award.
We also note that statutory punitive damage awards, which in many cases
may be awarded in addition to attorney’s fees and costs; see authorities
cited in footnote 12 of this opinion; present unique final judgment considera-
tions not present in this case. See Perkins v. Colonial Cemeteries, Inc., 53
Conn. App. 646, 649, 734 A.2d 1010 (1999) (no final judgment when jury has
found liability under CUTPA, but before trial court has decided whether to
award punitive damages, given that, under CUTPA, ‘‘courts generally award
punitive damages in amounts equal to actual damages or multiples of the
actual damages, the rights of the parties may be substantially affected by
the further proceedings that remain in this case’’).
16
We acknowledge that, under the Appellate Court’s well established
policy, its three judge panel in this case was bound to apply Lord v. Mans-
field, supra, 50 Conn. App. 21. See, e.g., Boccanfuso v. Conner, 89 Conn.
App. 260, 285 n.20, 873 A.2d 208 (‘‘[T]his court’s policy dictates that one
panel should not, on its own, reverse the ruling of a previous panel. The
reversal may be accomplished only if the appeal is heard en banc.’’ [Internal
quotation marks omitted.]), cert. denied, 275 Conn. 905, 882 A.2d 668 (2005).
17
The Appellate Court’s decision in Lord was released on August 25, 1998;
Lord v. Mansfield, supra, 50 Conn. App. 22; this court’s decision in Benvenuto
was released on July 21, 1998. Benvenuto v. Mahajan, supra, 245 Conn. 495.