Meadowbrook Center, Inc. v. Buchman , 169 Conn. App. 527 ( 2016 )

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MEADOWBROOK CENTER, INC. v. ROBERT
BUCHMAN
(AC 37979)
Lavine, Mullins and Bishop, Js.
Argued September 13—officially released December 6, 2016
(Appeal from Superior Court, judicial district of
Hartford, Robaina, J. [judgment]; Wahla, J. [motion for
attorney’s fees].)
Juri E. Taalman, with whom, on the brief, was Timo-
thy Brignole, for the appellant (defendant).
Edward M. Rosenthal, for the appellee (plaintiff).
Opinion
BISHOP, J. This appeal requires us to assess the inter-
play 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 attor-
ney’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 estop-
pel 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. Mead-
owbrook 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 defen-
dant. 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 attor-
ney’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 attor-
ney’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 manda-
tory 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 reconsidera-
tion 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, cap-
tioned ‘‘Attorney’s fees in action based on consumer
contract or lease,’’ and of Practice Book § 11-21, cap-
tioned ‘‘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 pro-
vides 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 defen-
dant 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 consum-
ers, 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 accor-
dance 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 tardi-
ness 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 discre-
tionary 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 substan-
tive 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 facili-
tate business and advance justice, they will be interpre-
ted 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 & Kermamides, 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 attorney’s fees as part of a bill of costs filed pursu-
ant to Practice Book § 18-5. Id., 432. Answering this
question in the negative, our Supreme Court opined
that the appropriate route for a successful party in a
consumer contract action is to file a motion for attor-
ney’s fees pursuant to Practice Book § 11-21. Id.,
432–33.
Importantly, the court in Traystman explicitly
declined to opine on whether the provisions of Practice
Book § 11-21 are mandatory or directory. ‘‘[T]he trial
court saw no need to consider whether the time limits
provided by § 11-21 are mandatory or directory, or to
exercise its discretion to excuse compliance with those
time limits. Indeed, in the proceedings before the trial
court the defendant never responded to the plaintiff’s
claim that the defendant’s request for attorney’s fees
was time barred by § 11-21, never argued that the rule’s
timing provision was directory rather than mandatory,
and never explained why his failure to comply with the
rule should be excused. We conclude that, under these
circumstances, it would be inappropriate for this court
to review the action of the trial court as if it had treated
the portion of the defendant’s bill of costs requesting
attorney’s fees pursuant to § 42-150bb as the effective
equivalent of a motion for attorney’s fees pursuant to
Practice Book § 11-21 and had exercised its discretion
to excuse compliance with the rule’s timing require-
ment.’’ Id., 433.
In sum, although our Supreme Court in Traystman
determined that Practice Book § 11-21 is the appro-
priate vehicle for a successful party in a consumer con-
tract case to seek attorney’s fees, the court did not
opine on whether the rule’s timing requirement is man-
datory or directory.
In analyzing Practice Book § 11-21, we must deter-
mine whether the use of the term ‘‘shall’’ creates a
mandatory or directory duty, as the use of the word
‘‘shall’’ does not automatically create a mandatory duty.7
Our Supreme Court has noted: ‘‘[A]lthough we have
often stated [that] [d]efinite words, such as must or
shall, ordinarily express legislative mandates of a nondi-
rectory nature . . . we also have noted that the use of
the word shall, though significant, does not invariably
establish a mandatory duty.’’ (Citation omitted; internal
quotation marks omitted.) Teresa T. v. Ragaglia, 272
Conn. 734, 744, 865 A.2d 428 (2005). Rather, the test to
apply in determining whether the use of the word ‘‘shall’’
connotes a mandatory duty, or is merely directory, is
‘‘whether the prescribed mode of action is the essence
of the thing to be accomplished, or in other words,
whether it relates to a matter of substance or conve-
nience. . . . If it is a matter of substance, the statutory
provision is mandatory. . . . If, however, the legisla-
tive provision is designed to secure order, system and
dispatch in the proceedings, it is generally held to be
directory, especially where the requirement is stated in
affirmative terms unaccompanied by negative words.
. . . Such a statutory provision is one which prescribes
what shall be done but does not invalidate action upon
a failure to comply.’’ (Citations omitted; internal quota-
tion marks omitted.) Statewide Grievance Committee
v. Rozbicki, supra, 219 Conn. 480–81.8
In the case at hand, we are persuaded that the thirty
day time provision set forth in Practice Book § 11-21
is intended to secure order and dispatch in the timely
disposition of a pending issue. Therefore, the time limi-
tation contained in the rule is directory and not manda-
tory. Indeed, our Supreme Court has observed that § 11-
21 was adopted apparently in response to concerns
raised following a decision of this court allowing an
award of attorney’s fees five months after the entry of
judgment. Traystman, Coric & Kermamides, P.C. v.
Daigle, supra, 282 Conn. 432 (‘‘[i]t is reasonable to con-
clude that § 11-21 was adopted to avoid an extended
period of uncertainty about this potential liability after
judgment’’); see Practice Book (1999) § 11-21, commen-
tary; Oakley v. Commission on Human Rights &
Opportunities, 237 Conn. 28, 30, 675 A.2d 851 (1996).
From this review, we glean two important facts. First,
the purpose of the timing provision in Practice Book
§ 11-21 is procedural and intended to facilitate the prog-
ress of the case since the timing of such a motion does
not go to the essence of the right to reasonable attor-
ney’s fees. Second, the purpose of the timing provision
in § 11-21 is to avoid a long period of delay between
judgment and a request for attorney’s fees.9
In light of the public policy of § 42-150bb to balance
the equities between commercial contractors and con-
sumers, the mandate of the statute that attorney’s fees
be awarded to a consumer who successfully defends a
consumer contract claim, we conclude that the timing
provision of Practice Book § 11-21 is directory and not
mandatory. To hold to the contrary would rigidly exalt
form over substance and, in the case of a minor failure
to adhere to the rule’s timing requirement, would pre-
vent the court from fulfilling the public policy driven
mandate of the statute.
Our reasoning is consistent with the analysis of our
Supreme Court regarding an analogous rule of proce-
dure. In Statewide Grievance Committee v. Rozbicki,
supra, 219 Conn. 480, our Supreme Court was called
upon to assess Practice Book (1991) § 31 (a) (now Prac-
tice Book § 2-47 [a]) concerning the attorney grievance
procedure. In part, § 31 (a) stated: ‘‘Any interim pro-
ceedings to the contrary notwithstanding, a hearing on
the merits of the [presentment] shall be held within
sixty days of the date the complaint was filed with the
court.’’ Faced with a record that demonstrated that a
hearing on the merits had not been held until several
months after the presentment, the court was required
to assess whether the sixty day time period set forth
in the rule was mandatory or directory. The court stated:
‘‘Practice Book § 31 (a) is designed to encourage order
and dispatch in the prosecution of presentments. This
section is cast in affirmative words, contains no penalty
for noncompliance and purports only to establish a time
limit for acting upon complaints. We conclude therefore
that its terms are directory, and not mandatory, and
that failure to meet its time requirements does not
deprive the court of jurisdiction.’’ Id., 481.
Our Supreme Court’s analysis in Rozbicki is applica-
ble equally to Practice Book § 11-21. The timing of a
motion for attorney’s fees is not a matter of substance.
Instead, as we have noted, the substance of § 11-21 is
the creation of a pathway for a party to seek the fees
to which he or she is entitled which, in this instance,
is as a successful consumer pursuant to the dictates of
§ 42-150bb. As with Practice Book (1991) § 31 (a), the
timing requirement set forth in Practice Book § 11-21
is intended to avoid extensive delay and ensure order.
In sum, the timing provision is a matter of procedure
and, therefore, directory.10
As noted, the court denied the defendant’s motion
for attorney’s fees because it felt constrained by the
thirty day time limitation in Practice Book § 11-21 for
the filing of such a motion. As a consequence, the court
did not exercise its discretion to determine whether
strict adherence to the rule would ‘‘work surprise or
injustice.’’ Practice Book § 1-8. Accordingly, a hearing
on the defendant’s motion is necessary.
The judgment is reversed and the case is remanded
with direction to conduct a hearing on the defendant’s
motion for attorney’s fees consistent with this opinion.
In this opinion the other judges concurred.
1
In his brief, the defendant also repeats his argument, made at trial, that
counsel fees are a component of damages under the pertinent statute, and,
therefore, the rule regarding the filing of a postjudgment motion for attor-
ney’s fees does not apply. Because this argument was rejected by our
Supreme Court in Traystman, Coric & Kermamides, P.C. v. Daigle, 282
Conn. 418, 429–31, 922 A.2d 1056 (2007), it does not warrant further dis-
cussion.
2
Section 42-150bb further provides that ‘‘the size of the attorney’s fee
awarded to the consumer shall be based as far as practicable upon the
terms governing the size of the fee for the commercial party.’’ Since the
amount of attorney’s fees set forth in the consumer contract in the present
case was stated as ‘‘reasonable,’’ the attorney’s fees to be awarded to the
successful consumer similarly should be an amount determined by the court
to be reasonable.
3
Our Supreme Court has stated previously that ‘‘§ 42-150bb is in deroga-
tion of the common law. Specifically, [t]he general rule of law known as
the American rule is that attorney’s fees and ordinary expenses and burdens
of litigation are not allowed to the successful party absent a contractual or
statutory exception. . . . Connecticut adheres to the American rule. . . .
There are few exceptions. . . . Section 42-150bb is, however, one of those
exceptions to the common-law rule.’’ (Citation omitted; internal quotation
marks omitted.) Aaron Manor, Inc. v. Irving, 307 Conn. 608, 616–17, 57
A.3d 342 (2013).
4
Our Supreme Court has discussed previously the legislative history of
§ 42-150bb and ‘‘recognized that it was designed to provide equitable results
for a consumer who successfully defended an action under a commercial
contract and the commercial party who was entitled to attorney’s fees.’’
Aaron Manor, Inc. v. Irving, 307 Conn. 608, 617–18, 57 A.3d 342 (2013).
Our review of the legislative history supports this proposition as well. As
a sponsor of the bill, Senator Salvatore DePiano commented during a Senate
hearing: ‘‘This bill would require that in a specified situation attorney’s fees
be awarded to a consumer who successfully brings or defends an action
based upon a contract or lease whenever such contract or lease provides
for the attorney’s fees of a commercial party.’’ 22 S. Proc., Pt. 13, 1979 Sess.,
p. 4275, remarks of Senator DePiano. In the House, similar comments were
made by Representative Richard Tulisano, another sponsor of the bill. He
commented: ‘‘Mr. Speaker, the legislation before us today provides [for] the
first time the ability for consumers in this state to obtain attorney’s fees,
of reasonable amount, as a result of defending or prosecuting any action
in which the commercial party has provided for attorney’s fees for their
own behalf. What this does is give some equity to the situation.’’ 22 H.R.
Proc., Pt. 22, 1979 Sess., p. 7489, remarks of Representative Tulisano. Repre-
sentative Tulisano further commented that the purpose of the bill was to
provide balance where the consumer contract, typically drawn up by the
commercial party, provides for attorney’s fees in the event of consumer
liability under the contract. Id., 7489–90.
5
We recognize that recently this court analyzed Practice Book § 11-21 in
Cornelius v. Rosario, 167 Conn. App. 120, 143 A.3d 611 (2016). At issue in
Cornelius was the defendant’s filing of a motion for attorney’s fees twenty
months after judgment had entered, and the question was what event, in a
complicated procedural history, triggered the thirty day filing deadline of
§ 11-21. Id., 132–33. In Cornelius, however, this court did not consider the
question of whether the thirty day filing provision in § 11-21 is mandatory
or directory, which is the question we now confront. Thus, while this court,
in Cornelius, agreed with the trial court’s denial of the defendant’s motion
for attorney’s fees as untimely, the question of whether § 11-21 timing require-
ment is mandatory or directory was not addressed. The court in Cornelius
opined: ‘‘The trial court held that because the motion was filed more than
thirty days following the date that the final judgment was rendered, it was
untimely under Practice Book § 11-21. We agree.’’ Id., 136. Because this
court, in Cornelius, offered no opinion as to whether the court has discretion
to entertain a motion for attorney’s fees, filed more than thirty days after
judgment, Cornelius is not controlling.
6
In this regard, we are mindful that discretion is not merely leeway in
decision-making. Discretion ‘‘means a legal discretion to be exercised in
conformity with the spirit of the law and in a manner to subserve and not
to impede or defeat the ends of substantial justice.’’ (Emphasis in original;
internal quotation marks omitted.) State v. Colton, 234 Conn. 683, 703, 663
A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d
892 (1996).
7
This court, in Morera v. Thurber, 162 Conn. App. 261, 267–68, 131 A.3d
1155 (2016), looked beyond the plain meaning of the word ‘‘shall’’ to deter-
mine whether its use in Practice Book § 25-26 (g) was mandatory or direc-
tory. The analysis hinged on the use of both ‘‘shall’’ and ‘‘may’’ in the same
section, which required a hearing under certain circumstances, and the court
stated: ‘‘[W]hen a [drafter] opts to use the words ‘shall’ and ‘may’ in the
same statute, they ‘must then be assumed to have been used with discrimina-
tion and a full awareness of the difference in their ordinary meanings.’ ’’
Id., 268. Unlike the rule under scrutiny in Morera, neither of the two enact-
ments in question here contains such a duality.
8
We recognize that the test utilized in Rozbicki related to statutory provi-
sions and not Practice Book sections. The interpretation of rules of practice,
however, is to be governed by the same principles as those regulating
statutory interpretation. Commissioner of Social Services v. Smith, supra,
265 Conn. 734. Accordingly, ‘‘the test to determine whether a statute is
mandatory or directory is applicable to rules of practice.’’ State v. Ocasio,
50 Conn. App. 748, 755 n.7, 718 A.2d 1018 (1998), rev’d on other grounds,
253 Conn. 375, 751 A.2d 825 (2000).
9
Although we do not seek to interfere with the court’s exercise of discre-
tion, we note from the trial court record that the plaintiff made no claim
that permitting a filing late by five days would be unjust or create surprise.
Rather, the plaintiff simply claimed that the rule’s timing provision was man-
datory.
10
We recognize that the implication of this opinion is that the term ‘‘shall’’
in § 42-150bb is mandatory while the same term in Practice Book § 11-21
is directory. Our conclusions are based on the context and purpose of the
statute and the rule of practice. As noted, the purpose of the statute is to
create equity between a commercial contractor and a consumer in a con-
sumer contract that provides attorney’s fees for the contractor. To suggest
that the term ‘‘shall’’ in § 42-150bb is merely directory would eviscerate the
statute’s central purpose. In that context, the term is mandatory. On the
contrary, as discussed, the use of the term ‘‘shall’’ in Practice Book § 11-21
is directory because it does not directly bear on the essence of the matter,
which, in this case, is to make an award of attorney’s fees in accord with
the dictates of § 42-150bb.