Doyle Group v. Alaskans for Cuddy ( 2016 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
THE DOYLE GROUP v. ALASKANS FOR CUDDY
(AC 36900)
Keller, Mullins and Kahn, Js.
Argued October 27, 2015—officially released March 29, 2016
(Appeal from Superior Court, judicial district of
Litchfield, Roche, J.)
James P. Sexton, with whom were Michael S. Taylor
and, on the brief, Matthew C. Eagan, for the appel-
lants (defendants).
Robert P. Hanahan, with whom, on the brief, was
Terrence D. Mariani, for the appellee (plaintiff).
Opinion
MULLINS, J. The defendants, Alaskans for Cuddy and
David Cuddy,1 appeal from the judgment of the trial
court, supplementing its original judgment by adding
contractual prejudgment interest and contractual attor-
ney’s fees to the damages awarded to the plaintiff, The
Doyle Group, Inc. The defendants claim that the court
improperly supplemented its judgment because (1) the
plaintiff waived its right to request contractual prejudg-
ment interest and attorney’s fees, and (2) the court had
no authority to award the interest and fees because it
was required to open the judgment in order to do so,
and more than four months had passed since it ren-
dered judgment.
In the alternative, the defendants claim that the judg-
ment forming the basis of the earlier appeal of this case;
see Doyle Group v. Alaskans for Cuddy, 146 Conn. App.
341, 77 A.3d 880 (2013); was not final and the case was
not ripe for appeal until the trial court ruled on the
plaintiff’s claim for contractual prejudgment interest
and contractual attorney’s fees, and that, therefore, our
decision in the earlier appeal is void.2 We affirm the
judgment of the trial court.
The following facts and procedural history, as set
forth in the previous appeal, inform our review. ‘‘The
plaintiff is a Connecticut based political consulting firm
located in Hartford. In late 2007 into early 2008, Cuddy
contemplated running in Alaska as a candidate for the
United States Senate against then Senator Theodore
‘Ted’ Stevens. In late February, 2008, following discus-
sions between Cuddy and a principal of the plaintiff,
Thomas J. D’Amore, Jr., the plaintiff’s president, John
A. Doyle, sent a proposed contract to Cuddy, who
signed the contract on March 1, 2008. Cuddy sent the
contract to the plaintiff in Connecticut along with his
personal check for $10,000. On March 5, 2008, Doyle
signed the contract and deposited Cuddy’s check in the
plaintiff’s Webster Bank account.
‘‘The first paragraph of the contract identifies the
plaintiff and its address in Hartford. Among other
things, the contract provides: ‘The first $10,000 payment
shall be due on or before March 3, 2008 and subsequent
payments on the first day of each of the succeeding
months for which this Contract is in force. . . .
‘‘ ‘It is understood and agreed that the foregoing pay-
ments are to cover all in-state expenses of [the plaintiff].
. . . Amounts incurred for out-of-state activities and/
or for expenses for the retention of [nonplaintiff] legal
or other professional services shall only be reimbursed
by the Client if he approves such expenses in writing
in advance.
‘‘ ‘This Contract is effective March 3, 2008 and shall
be in force for 3 months.’
‘‘In March and April, 2008, the plaintiff performed
consulting work from Connecticut for the defendants.
Consulting services were provided via numerous
e-mails and telephone calls to Cuddy and his agents.
The relationship between Cuddy and the plaintiff deteri-
orated, however, and Cuddy terminated the contract
on April 10, 2008, without further payment to the plain-
tiff.’’ Id., 343–44.
The plaintiff brought an action against the defendants
seeking, among other relief, ‘‘costs, interest, and legal
fees as provided for by the contract.’’ Attached to the
plaintiff’s complaint was a copy of the parties’ contract,
which provided in relevant part: ‘‘In return for such
services the Client agrees to pay [the plaintiff] $10,000
per month for each month this Contract is in force. The
first $10,000 payment shall be due on or before March
3, 2008 and subsequent payments on the first day of
each of the succeeding months for which this Contract
is in force. Any payment not made within 60 days after
it is due shall bear interest at the annual rate of 8
[percent]. If the Client does not make any payment
within 30 days after it is due, [the plaintiff has] the right
to terminate this Contract, and/or to require the Client
to pay immediately all amounts then due plus the entire
remainder of fees for the balance of the month term.
The Client shall also be responsible for legal fees (not
to exceed 33 [percent] of any overdue amount) incurred
by [the plaintiff] in order to collect amounts due under
this Contract.’’
In January, 2012, the case was tried to a jury. During
opening statements on January 4, 2012, the plaintiff’s
attorney explained to the jury that the plaintiff was
‘‘seeking the $20,000 that he . . . claim[ed] [was] still
owe[d] on the contract . . . and [that] there [was] also
a provision in the contract . . . for interest on the over-
due balances and for lawyer’s fees.’’ The plaintiff sub-
mitted to the court a request to charge, dated January 3,
2012, which included an instruction on both contractual
attorney’s fees and contractual prejudgment interest.
Following the close of evidence on January 6, 2012, the
court explained to counsel that it wanted to ‘‘put on the
record [their] understanding concerning certain aspects
of the contract involving attorney’s fees and interest
after argument, and [that it would] make that part of
[its] instructions to the jury concerning those two items
at the appropriate time.’’3
When reading its closing instructions to the jury, the
court removed the issue of contractual interest and
attorney’s fees from the jury’s consideration, by
instructing: ‘‘Now, in this particular contract, there are
provisions relating to interest and attorney’s fees that
may be awarded. You are not to take into consideration
in this matter, during your deliberations, either one of
those provisions, nor render any decision concerning
those two particular items.’’
Later, ‘‘[t]he jury returned a verdict in favor of the
plaintiff on all counts and awarded the plaintiff $20,000
in damages as to both defendants. The court, Roche,
J., denied the defendants’ subsequent motion to set
aside the verdict [on April 16, 2012, and it rendered
judgment in accordance with the verdict that same
day].’’ Doyle Group v. Alaskans for Cuddy, supra, 146
Conn. App. 344. The defendants then appealed, and, on
October 8, 2013, we affirmed the judgment of the trial
court. Id., 354.
While that appeal was pending, however, the plaintiff,
on October 2, 2012, filed a motion for supplemental
judgment with the trial court, requesting that the court
add $13,797.11 to its judgment ‘‘in accordance with the
provisions of the underlying contract, which entitles
the plaintiff to interest of 8 percent on the overdue
amount of $20,000 and legal fees not to exceed 33 per-
cent, i.e., $6666.66, as provided for in the contract.’’ The
defendants, on October 11, 2012, then filed an objection
to the plaintiff’s motion for supplemental judgment on
the grounds that the trial court lacked statutory author-
ity to entertain the motion, and that the judgment on
the jury verdict was final and, therefore, could not be
altered by adding fees and interest.
The plaintiff filed an amended motion for supplemen-
tal judgment on December 10, 2013, seeking additional
interest. Thereafter, the court permitted the defendants
an extension of time to respond, and the defendants,
on March 4, 2014, filed an objection to the plaintiff’s
amended motion. In their memorandum in support of
their objection, the defendants argued that the award of
prejudgment interest is discretionary, that the plaintiff
waived its right to postjudgment interest4 and that the
court did not have the authority to open the judgment
more than 120 days after rendering a judgment on the
merits. On March 6, 2014, the defendants filed a supple-
mental memorandum in support of their objection,
arguing that, pursuant to General Statutes § 52-212a,5
the court did not have authority to open the judgment as
to the plaintiff’s request for contractual attorney’s fees.
On March 24, 2014, the court, Roche, J., conducted
a hearing on the plaintiff’s motion for supplemental
judgment. After the hearing, the court ordered the par-
ties to submit simultaneous supplemental posthearing
briefs, which they provided. In their posthearing memo-
randum, the defendants argued (1) that the court had
no authority to open the judgment pursuant to § 52-
212a, (2) that prejudgment interest may only be
awarded if money is withheld wrongfully, and that the
jury needed to make such a finding, (3) that attorney’s
fees can be awarded only on the basis of bad faith,
and (4) that the award of postjudgment interest is an
equitable matter.6
On April 14, 2014, Judge Roche issued a memorandum
of decision in which he rendered a supplemental judg-
ment in favor of the plaintiff. Specifically, the court
awarded the plaintiff $6161 for prejudgment interest
and $6000 for attorney’s fees; the court also ordered
postjudgment interest. Judge Roche explained that the
original judgment did not need to be opened because
this matter was ancillary, and the court retained juris-
diction for purposes of awarding prejudgment interest
and attorney’s fees pursuant to the parties’ contract.
On April 28, 2014, the defendants filed a motion to
reargue and reconsider, which the court, on May 23,
2014, denied. This appeal followed. Additional facts will
be set forth as necessary.
I
We first consider the defendants’ claim regarding
whether the trial court’s judgment of April 16, 2012,
was final for purposes of the previous appeal if there
remained an outstanding issue of contractual prejudg-
ment interest and contractual attorney’s fees, and, con-
sequently, whether our opinion in Doyle Group v.
Alaskans for Cuddy, supra, 146 Conn. App. 341, was
void. We conclude, pursuant to Ray Haluch Gravel Co.
v. Central Pension Fund of the International Union
of Operating Engineers & Participating Employers,
U.S. , 134 S. Ct. 773, 777, 187 L. Ed. 2d 669 (2014),
and Hylton v. Gunter, 313 Conn. 472, 97 A.3d 970 (2014),
that the court’s later determination of contractual attor-
ney’s fees and contractual prejudgment interest did not
affect the finality of the judgment on the jury’s verdict
for appeal purposes. Accordingly, there was no final
judgment problem that rendered void our decision in
the earlier appeal.
‘‘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. . . .
‘‘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.
. . .
‘‘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. . . . 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.’’ (Citations omitted;
internal quotation marks omitted.) Hylton v. Gunter,
supra, 313 Conn. 478–79; see also Benvenuto v. Maha-
jan, 245 Conn. 495, 501, 715 A.2d 743 (1998) (recogniz-
ing that attorney’s fees award is not part of
supplemental postjudgment claim, but, rather, is inte-
gral to strict foreclosure judgment on merits still held
to be severable from that judgment on merits for pur-
poses of finality).
In Hylton, the trial court had rendered judgment in
favor of the plaintiff, and it awarded compensatory dam-
ages in the amount of $342,648. Hylton v. Gunter, supra,
313 Conn. 475. The trial court also found that the plain-
tiff was entitled to punitive damages in the form of
attorney’s fees, and it instructed the plaintiff to file an
affidavit of fees within thirty days. Id. In the meantime,
however, the defendant filed an appeal. Id. More than
one month later, the trial court awarded the plaintiff
$23,400 in punitive damages, in the form of attorney’s
fees. Id. The Appellate Court then concluded that, at the
time the appeal was filed, there was no final judgment
because the issue of punitive damages had not been
resolved before the appeal was taken, and it dismissed
the appeal. Id., 476–77.
Following certification by our Supreme Court, the
defendant argued that ‘‘there was a final judgment . . .
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.’’
Id., 477. Guided by Budinich v. Becton Dickinson &
Co., 486 U.S. 196, 201, 108 S. Ct. 1717, 100 L. Ed. 2d 178(1988), our Supreme Court agreed that the outstanding
issue of attorney’s fees as punitive damages did not
affect the finality of the judgment for purposes of
appeal. Hylton v. Gunter, supra, 313 Conn. 483–84; see
also Paranteau v. DeVita, 208 Conn. 515, 522–23, 544
A.2d 634 (1988) (adopting bright line rule that decision
on merits is final judgment for purposes of appeal even
though recoverability or amount of attorney’s fees for
litigation remains to be determined, and concluding
‘‘[w]e do not believe the timeliness of an appeal should
be based upon retrospective, technical considerations
of whether a particular supplemental postjudgment
claim for attorney’s fees was collateral to, or an integral
part of, the judgment on the merits’’). Our Supreme
Court explained that the court in Budinich had rea-
soned that ‘‘common-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,’’ and, as such, the fact that they
are awarded postjugment does not affect the finality
of the underlying judgment. (Internal quotation marks
omitted.) Hylton v. Gunter, supra, 485–87.
In concluding that the underlying judgment in the
present case was a final judgment for appeal purposes,
we also are guided by a more recent decision of the
United States Supreme Court, which also was cited in
Hylton. See id., 479 n.7. Specifically, in Ray Haluch
Gravel Co. v. Central Pension Fund of the International
Union of Operating Engineers & Participating
Employers, supra, 134 S. Ct. 777 (Haluch), the Supreme
Court further extended the final judgment rule from
attorney’s fees based on statute to those fees and costs
awarded pursuant to contractual provisions. The court
held: ‘‘Whether the claim for attorney’s fees is based
on a statute, a contract, or both, the pendency of a
ruling on an award for fees and costs does not prevent,
as a general rule, the merits judgment from becoming
final for purposes of appeal.’’ Id.In Haluch, the plaintiffs had requested, inter alia,
attorney’s fees in accordance with the parties’ contract.
Id. Because the respondents, if successful on their
claims, could recover attorney’s fees under either the
federal statute or under the parties’ collective bar-
gaining agreements, the trial court ‘‘gave the [plaintiffs]
the option to offer a submission with regard to fees
along with their proposed findings of fact and conclu-
sions of law, or to wait to see if [it found] in [the
plaintiffs’] favor and [to] submit the fee petition later
on.’’ (Internal quotation marks omitted.) Id., 777. The
plaintiffs moved for fees under the federal statute and
pursuant to the agreements of the parties. Id., 777–78.
Following the court’s June 17, 2011 judgment in favor
of the plaintiffs, in the amount of $26,897.41, it issued
a ruling awarding attorney’s fees and costs on July 25,
2011. Id., 778. On August 15, 2011, the plaintiffs appealed
from both decisions, and the defendant then cross
appealed. Id.
On appeal, the defendant argued that the plaintiffs’
appeal from the June 17, 2011 judgment was untimely
because the outstanding issue regarding attorney’s fees
and costs under the contract had not stayed the finality
of the underlying judgment for appeal purposes. Id. The
Court of Appeals disagreed and held that the judgment
was not final until the attorney’s fees and costs portion
of the judgment had been rendered. Id. The defendant
requested and was granted certification by the Supreme
Court on the question of ‘‘whether and when an unre-
solved issue of attorney’s fees based on a contract pre-
vents a judgment on the merits from being final.’’ Id.,
778–79. The plaintiffs argued before the Supreme Court
that ‘‘unresolved claims for attorney’s fees authorized
by contract, unlike those authorized by statute, are not
collateral for finality purposes, [and that] the claim left
unresolved as of June 17 included fees incurred prior
to the commencement of formal litigation and that those
fees, at least, fall beyond the scope of Budinich.’’ Id.,
780.
The Supreme Court disagreed and concluded that the
judgment on the merits was final for purposes of appeal
on June 17, 2011, and, accordingly, that the plaintiffs’
appeal from that judgment was untimely. Id., 780, 783.
The court further determined that fees other than attor-
ney’s fees that are part of the incidental fees and costs
being sought following judgment also would not affect
the finality of the judgment on the merits for purposes
of appeal. Id., 782–83. The court cited as examples of
costs and fees that would not affect finality of judgment
on the merits things such as auditor’s fees, other nonat-
torney professional fees, additional litigation expenses,
such as expert fees, other statutorily entitled fees, and
fees that were incurred prior to the start of litigation.
Id. Similar to the plaintiffs in Haluch, the plaintiff in
the present case was not entitled to contractual attor-
ney’s fees or contractual prejudgment interest without
first proving that the defendants were in violation of
the parties’ contract by failing to pay amounts owed.
Here, the plaintiff’s entitlement to contractual pre-
judgment interest and contractual attorney’s fees was
based on a specific provision of the parties’ contract
that provided for the award of such fees and costs upon
proof that the defendants had not remitted payment to
the plaintiff in accordance with the terms of the con-
tract. The plaintiff’s entitlement to these fees was not
discretionary, and the method of calculation was set
forth in the contract. The plaintiff proved the defen-
dants’ breach of the contract to the satisfaction of the
jury. The jury then returned a verdict in favor of the
plaintiff in the full amount. Upon the court’s acceptance
of that verdict and its denial of the defendants’ motion
for directed verdict, the court rendered judgment in
favor of the plaintiff.
Thus, in accordance with Hylton v. Gunter, supra,
313 Conn. 487, and Haluch, supra, 134 S. Ct. 777, we
conclude that, regardless of whether the issue of con-
tractual prejudgment interest and contractual attor-
ney’s fees remained outstanding, the court’s April 16,
2012 judgment was final for purposes of appeal. A judg-
ment on the merits of the case had been rendered, and
the issue of contractual attorney’s fees and contractual
prejudgment interest did not affect the finality of that
judgment; the specific award of these fees was not
necessary to the judgment, but was ancillary to it, and
could not have been awarded until a breach of the
contract was established. See Hylton v. Gunter, supra,
313 Conn. 487, and Haluch, supra, 134 S. Ct. 777.
Accordingly, the fact that the plaintiff had not yet been
awarded the fees and costs to which it was entitled,
pursuant to the parties’ contract, following proof of the
defendants’ breach, did not affect the finality of the
underlying judgment on the merits. The defendants,
therefore, cannot prevail on their claim that our prior
opinion in this case is void.
II
The defendants claim that the court improperly sup-
plemented its judgment after the plaintiff waived its
right to prejudgment interest and attorney’s fees. In
particular, the defendants claim that the plaintiff waived
its claim to attorney’s fees and prejudgment interest in
the following three ways: (1) by failing to object to the
court’s removal of those issues from the jury’s consider-
ation, (2) by failing to move for reargument or to set
aside the verdict, (3) by failing to request attorney’s
fees within thirty days of the judgment pursuant to
Practice Book § 11-21,7 or by otherwise objecting to the
court rendering judgment on the verdict before deciding
the claim for these fees. The plaintiff argues that the
defendants’ waiver claim is unpreserved and therefore
unreviewable because the defendants never raised a
claim of waiver before the trial court. We agree.8
‘‘[O]ur rules of practice require a party, as a prerequi-
site to appellate review, to distinctly raise its claim
before the trial court. See Practice Book § 5-2 (‘[a]ny
party intending to raise any question of law which may
be the subject of an appeal must . . . state the ques-
tion distinctly to the judicial authority’); Practice Book
§ 60-5 (‘[t]he court shall not be bound to consider a
claim unless it was distinctly raised at trial or arose
subsequent to trial’). For that reason, we repeatedly
have held that ‘we will not decide an issue that was
not presented to the trial court. To review claims articu-
lated for the first time on appeal and not raised before
the trial court would be nothing more than a trial by
ambuscade of the trial judge.’ ’’ Welsh v. Martinez, 157
Conn. App. 223, 237 n.9, 114 A.3d 1231, cert. denied,
317 Conn. 922, 118 A.3d 63 (2015).
Starting with the defendants’ first objection to the
plaintiff’s motion for supplemental judgment, it is clear
that the defendants did not raise a claim to the trial
court that the plaintiff had waived its right to pursue the
fees and interest. Indeed, on the face of the defendants’
objection to the plaintiff’s October 2, 2012 motion for
supplemental judgment, the defendants argued, in its
entirety: ‘‘The defendants, Alaskans for Cuddy and
David Cuddy, hereby object to the motion for supple-
ment judgment. Counsel for the defendants was
retained today in this matter for purposes of objecting
to the motion. The bases for the objection are (1) the
lack of statutory authority for the motion, (2) the finality
of the jury verdict that precludes alteration by the court
in this manner, and (3) the need for additional time to
review the calculation of interest, if the motion were
deemed proper by the court.’’
Later, in their memorandum in support of its objec-
tion to the plaintiff’s December 10, 2013 motion for
supplemental judgment, the defendants argued that the
award of prejudgment interest is discretionary and
required a finding that the defendants wrongfully with-
held the plaintiff’s money, that the plaintiff waived its
right to postjudgment interest and that the court did
not have the authority to open the judgment, pursuant
to § 52-212a, because more than 120 days had passed
since the court rendered judgment. Again, the defen-
dants asserted no waiver claim, except as to postjudg-
ment interest, which they specifically have waived on
appeal. See footnote 4 of this opinion.
Then, the trial court held a hearing on the plaintiff’s
motion for supplemental judgment and the defendants’
objections thereto.9 After the hearing, the court gave the
defendants and the plaintiff an additional opportunity to
file posthearing briefs. In their posthearing brief, the
defendants did not make a waiver claim. Instead, they
essentially made the same arguments that were set forth
in their memorandum in support of their objection to
the plaintiff’s motion.
Following the court’s rendering of its supplemental
judgment, the defendants raised the issue of waiver in
their motion to reargue, which the court denied. In that
motion, the defendants asserted that the plaintiff had
waived its claim for contractual attorney’s fees and
contractual interest, and they continued to argue the
applicability of § 52-212a. Their argument essentially
was that the court was required to open the judgment
to make such an award, and the plaintiff had waived
its entitlement to that award by failing to file its motion
within 120 days, pursuant to § 52-212a. The defendants
further contended that General Statutes § 51-183b was
not applicable to this case.10 Moreover, we note that
the defendants did not set forth an argument concerning
Practice Book § 11-21. In fact, the defendants never
asked the trial court, in any of their motions objecting
to the plaintiff’s motion for supplemental judgment or
during argument on those motions, to rule on the appli-
cability of Practice Book § 11-21. That particular claim
was raised for the first time on appeal.
A review of the record in this case reveals that the
defendants did not raise in either of their objections to
the plaintiff’s motions for supplemental judgment, or
in their posthearing brief, any argument that the plaintiff
had waived its right to contractual prejudgment interest
and contractual attorney’s fees by failing to object to
the court’s removal of those issues from the jury’s con-
sideration, by failing to move for reargument or to set
aside the verdict, or by otherwise objecting to the court
rendering judgment on the verdict before deciding the
claim for the contractual fees and interest. Although
the defendants filed a motion to reargue in which they
claimed, in part, that the plaintiff had waived its right to
recover contractual prejudgment interest and attorney’s
fees,11 our law is clear that ‘‘[r]aising an issue for the
first time in a motion to reargue will not preserve that
issue for appellate review.’’ White v. Mazda Motor of
America, Inc., 313 Conn. 610, 634, 99 A.3d 1079 (2014).
We conclude that the defendants failed to preserve
this claim before the trial court, and that raising the
issue for the first time in their motion for reargument
and in this appeal did not preserve this waiver issue
for appellate review. Accordingly, we decline to review
it. See id.; J. Wm. Foley, Inc. v. United Illuminating
Co., 158 Conn. App. 27, 46–47 n.13, 118 A.3d 573 (2015)
(‘‘[t]o review claims articulated for the first time on
appeal and not raised before the trial court would be
nothing more than a trial by ambuscade of the trial
judge’’ [internal quotation marks omitted]).
III
The defendants also claim that the court acted out-
side of its authority, in contravention of § 52-212a, by
adding contractual prejudgment interest and attorney’s
fees more than four months after its April 16, 2012
judgment had been rendered.12 They argue that the court
was required to open the judgment to add these
amounts and that § 52-212a prohibits the court from
opening the judgment, except within four months. We
disagree that the court was required to open the judg-
ment to add contractual prejudgment interest and con-
tractual attorney’s fees.
The following facts inform our review. The parties’
contract in this case specifically stated that ‘‘[a]ny pay-
ment not made within 60 days after it is due shall bear
interest at the annual rate of 8 [percent]’’ and that the
defendants ‘‘shall also be responsible for legal fees (not
to exceed 33 [percent] of any overdue amount) incurred
by [the plaintiff] in order to collect amounts due under
this Contract.’’ Although the plaintiff had requested that
the court instruct the jury on prejudgment interest and
attorney’s fees, the court, before instructing the jury,
stated to both parties that it wanted to ‘‘put on the
record [their] understanding concerning certain aspects
of the contract involving attorney’s fees and interest
after argument, and [that it would] make that part of
[its] instructions to the jury concerning those two items
at the appropriate time.’’ When reading its closing
instructions to the jury, the court told the jury not to
consider the issues of contractual prejudgment interest
and attorney’s fees. The court, however, did not discuss
on the record the parties’ understanding of the plaintiff’s
entitlement to the interest and fees before rendering
judgment on April 16, 2012. The defendants then timely
appealed from this judgment.
Nearly five and one-half months after the court ren-
dered its original judgment, and after the defendants
had appealed from that judgment, the plaintiff, on Octo-
ber 2, 2012, filed a motion for supplemental judgment
requesting that the court award the prejudgment inter-
est and attorney’s fees that it was due pursuant to the
parties’ contract and as requested in the plaintiff’s com-
plaint. The defendants objected, claiming, in relevant
part, that the court was prohibited by § 52-212a from
opening the judgment because more than four months
had passed since it rendered judgment in accordance
with the jury’s verdict. The court concluded, however,
that it was not required to open the judgment to deter-
mine this matter, and, instead, ruled that the adding of
contractual prejudgment interest and attorney’s fees
remained an open issue and that the matter was ancil-
lary to the judgment. The court also held that the 120
day limit imposed by § 51-183b did not apply.13
Looking at the plain language of the contract, the
court then stated that the contract imposed an annual
interest rate of 8 percent on the outstanding balance,
which amounted to a per diem rate of $4.37. The court
also awarded attorney’s fees in the amount of $6000,
although, under the contract, the plaintiff was entitled
to receive up to 33 percent of the outstanding balance
of the contract, which, in this case, the jury found to
be $20,000; therefore, the attorney’s fees could have
been up to $6666.14
On appeal, the defendants claim that the court
improperly opened the judgment, approximately five
and one-half months after judgment was rendered, in
violation of § 52-212a. We begin by setting forth the
standard of review that governs our consideration of the
defendants’ claim. ‘‘Whether a court retains continuing
jurisdiction over a case is a question of law subject to
plenary review. . . . Whether a court properly exer-
cised that authority, however, is a separate inquiry that
is subject to review only for an abuse of discretion.’’
(Citation omitted.) Rosado v. Bridgeport Roman Catho-
lic Diocesan Corp., 276 Conn. 168, 211, 884 A.2d 981(2005). In the present case, we are called upon to deter-
mine whether the trial court, in acting on the plaintiff’s
motion for supplemental judgment, violated § 52-212a.
Section 52-212a provides in relevant part: ‘‘Unless
otherwise provided by law and except in such cases
in which the court has continuing jurisdiction, a civil
judgment or decree rendered in the Superior Court may
not be opened or set aside unless a motion to open or
set aside is filed within four months following the date
on which it was rendered or passed. . . .’’ Neverthe-
less, ‘‘[e]ven when a postjudgment motion is not styled
as a motion to open the judgment, a court’s action on
that motion . . . could be violative of § 52-212a if, out-
side the four month statutory period, the court substan-
tively modifies the judgment. . . . [A]dditional orders
and modifications necessary to vindicate a prior order
[however] fall within the court’s continuing jurisdiction
and therefore are specifically excepted from the four
month rule.’’ (Citation omitted.) Hogan v. Lagosz, 147
Conn. App. 418, 430, 84 A.3d 434 (2013).
In Neiditz v. Housing Authority, 42 Conn. App. 409,
411–12, 679 A.2d 987 (1996), we explained that ‘‘[i]t is
well established by both the United States Supreme
Court and Connecticut precedents that a request for
attorney’s fees is not a motion to open, set aside, alter,
or modify a judgment, but rather [it is a request that]
raises legal issues collateral to the main cause of action
. . . . [R]egardless of when attorney’s fees are
requested, the court’s decision of entitlement to fees
. . . require[s] an inquiry separate from the decision
on the merits—an inquiry that cannot even commence
until one party has prevailed.’’ (Citation omitted; inter-
nal quotation marks omitted.) The court’s decision on
a request for attorney’s fees ‘‘does not open, modify,
or in any way affect the judgment.’’ Oakley v. Commis-
sion on Human Rights & Opportunities, 38 Conn. App.
506, 517, 662 A.2d 137 (1995), aff’d, 237 Conn. 28, 675
A.2d 851 (1996).
Although we recognize that the procedural postures
of Neiditz and Oakley are different from the posture
of the present case, with Neiditz involving appellate
attorney’s fees, and Oakley involving attorney’s fees
awarded by the Superior Court upon remanding a mat-
ter to the Commission on Human Rights and Opportuni-
ties, the language in those cases is not restrictive or
limited, but, rather, it is quite broad and explicit. Indeed,
we read those cases to stand for the proposition that
the court does not need to open a judgment in order to
award fees to which a party is entitled under a relevant
statute or under the parties’ contract because those
fees are collateral to the judgment and the court retains
continuing jurisdiction over such matters. See Neiditz
v. Housing Authority, supra, 42 Conn. App. 412–13;
Oakley v. Commission on Human Rights & Opportuni-
ties, supra, 38 Conn. App. 517.
Further supporting this conclusion are the cases cited
in part I of this opinion, which led us to conclude that,
despite the outstanding issues of contractual prejudg-
ment interest and contractual attorney’s fees, the prior
judgment in this case was final for purposes of appeal
because those issues were collateral to the court’s judg-
ment on the merits; see Hylton v. Gunter, supra, 313
Conn. 487; Benvenuto v. Mahajan, supra, 245 Conn. 501;
see also Haluch, supra, 134 S. Ct. 780, 782–83 (court’s
postjudgment award of fees and costs that are collateral
to judgment, including certain attorney’s fees, profes-
sional fees, litigation expenses, statutorily entitled fees,
and fees that are incurred prior to start of litigation,
does not affect finality of judgment on merits); and are
separately appealable. See Paranteau v. DeVita, supra,
208 Conn. 523 (despite outstanding issue of attorney’s
fees, decision on merits of case is final judgment for
purposes of appeal, and, once determined, attorney’s
fees can be appealed separately).
The judgment is affirmed.
In this opinion the other judges concurred.
1
After this action had been commenced, David Cuddy was added as a
party defendant.
2
The defendants also request, if we agree that the prior judgment was
not a final judgment and that the earlier appeal was improper, that we
permit the parties to file supplemental briefs addressed to the merits of the
entire judgment. Given our conclusion that there was a final judgment prior
to the earlier appeal, there is no need for supplemental briefing.
3
The parties’ ‘‘understanding concerning certain aspects of the contract
involving attorney’s fees and interest,’’ however, was not discussed after
argument or after the jury returned its verdict. The issue of attorney’s fees
and interest was not discussed again until the plaintiff filed its October 2,
2012 motion for supplemental judgment.
4
In this appeal, the defendants specifically waive any claim that the court’s
award of postjudgment interest was improper.
5
General Statutes § 52-212a provides in relevant part: ‘‘Unless otherwise
provided by law and except in such cases in which the court has continuing
jurisdiction, a civil judgment or decree rendered in the Superior Court may
not be opened or set aside unless a motion to open or set aside is filed within
four months following the date on which it was rendered or passed. . . .’’
6
See footnote 4 of this opinion.
7
Practice Book § 11-21 provides: ‘‘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. If appellate attorney’s fees
are sought, motions for such fees shall be filed with the trial court within
thirty days following the date on which the appellate court or supreme court
rendered its decision disposing of the underlying appeal. Nothing in this
section shall be deemed to affect an award of attorney’s fees assessed as
a component of damages.’’
8
Although we decline to review this claim, we, nevertheless, mention that
the defendants rely heavily on Balf Co. v. Spera Construction Co., 222 Conn.
211, 608 A.2d 682 (1992), for their argument that the plaintiff waived any
claim that there was a live controversy regarding prejudgment interest
because, once the court rendered judgment without objection by the plaintiff,
the matter was concluded. We have reviewed Balf Co. and conclude that
it is inapposite to the present case because the issue in that case involved
a matter of discretionary prejudgment interest that required fact-finding.
Id., 215. As explained in Balf Co., ‘‘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 merit[s] . . . . In deciding if and how much [discretionary]
prejudgment interest should be granted, a . . . court must examine—or in
the case of a postjudgment motion, reexamine—matters encompassed
within the merits of the underlying action.’’ (Emphasis added; internal quota-
tion marks omitted.) Id. Prejudgment interest in the present case was not
discretionary and did not necessitate a reexamination of the judgment on
the merits; rather, it was a matter of contract, with the percentage preset
by the terms of the parties’ agreement.
9
During oral argument on the plaintiff’s motion for supplemental judg-
ment, the defendants did make one statement regarding waiver, but it was
tied to the court’s continuing jurisdiction to open a judgment. The defen-
dants’ attorney argued: ‘‘[C]ounsel waited more than 120 days to [request
an award of contractual attorney’s fees and contractual prejudgment inter-
est], and then he filed a motion for supplemental judgment, and then the
case went on appeal. . . . But there is such a thing as waiver, and, although
the contract says they may collect this percentage or get attorney’s fees,
counsel waived that by not filing within 120 days after having clear notice
of the unambiguous judgment of this court, that the court said judgment is
in the amount of $20,000 with no allowance and no mention of attorney’s
fees or interest.’’ Immediately following that statement the court and counsel
continued to discuss the applicability of § 52-212a.
Although the defendants used the word ‘‘waiver’’ during their oral argu-
ment on the plaintiff’s motion for supplemental judgment, we conclude that
they did not distinctly raise the issue of waiver before the trial court; the
issue was never included in any motion filed by the defendants, it was not
contained in any accompanying memorandum of law, it was not included
in the defendants’ posthearing brief, and the trial court never ruled on
the issue.
‘‘It is fundamental that claims of error must be distinctly raised and
decided in the trial court. As a result, Connecticut appellate courts will not
address issues not decided by the trial court. . . . Similarly, Practice Book
§ 60-5 provides in relevant part that our appellate courts shall not be bound
to consider a claim unless it was distinctly raised at the trial . . . . As our
Supreme Court recently observed, [t]he reason for the rule is obvious: to
permit a party to raise a claim on appeal that has not been raised at trial—
after it is too late for the trial court or the opposing party to address the
claim—would encourage trial by ambuscade, which is unfair to both the
trial court and the opposing party. . . . Thus, the requirement of Practice
Book § 60-5 that the claim be raised distinctly means that it must be so
stated as to bring to the attention of the [trial] court the precise matter on
which its decision is being asked.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) State v. Faison, 112 Conn. App. 373,
379–80, 962 A.2d 860, cert. denied, 291 Conn. 903, 967 A.2d 507 (2009); see
also White v. Mazda Motor of America, Inc., 313 Conn. 610, 631, 99 A.3d
1079 (2014) (‘‘an issue must be distinctly raised before the trial court, not
just briefly suggested’’ [internal quotation marks omitted]).
10
General Statutes § 51-183b provides: ‘‘Any judge of the Superior Court
and any judge trial referee who has the power to render judgment, who has
commenced the trial of any civil cause, shall have power to continue such
trial and shall render judgment not later than one hundred and twenty days
from the completion date of the trial of such civil cause. The parties may
waive the provisions of this section.’’
11
In their appellate brief, the defendants state that they, in part, have
appealed from the trial court’s denial of their motion to reargue. They have
not briefed, however, an issue addressed to whether the court abused its
discretion in denying their motion to reargue.
12
The defendants, in a footnote, also argue that because the plaintiff failed
to file a motion for attorney’s fees within thirty days of the judgment pursuant
to Practice Book § 11-21, the court was without authority to award attorney’s
fees in this case. Although the defendants raised Practice Book § 11-21 in
its waiver claim to this court, which we concluded was abandoned in part
II of this opinion, the defendants did not include in the main portion of its
brief an argument that Practice Book § 11-21 limited the court’s authority
to issue the supplemental judgment in this case; nor did it raise Practice
Book § 11-21 before the trial court. Accordingly, we will not consider this
argument. See, e.g., PaineWebber, Inc. v. American Arbitration Assn., 217
Conn. 182, 189–90 n.12, 585 A.2d 654 (1991) (declining to review claim raised
on appeal where fair reading of trial court record indicated that claim not
distinctly raised in trial court and footnote could not be considered adequate
briefing of issue).
13
The defendants do not claim, nor have they ever claimed, that § 51-183b
applied to this matter, and, as a matter of fact, they repeatedly argued that
it did not apply. Because no such claim was raised before the trial court,
we do not consider whether a seasonable objection under § 51-183b could
have rendered void the court’s decision in this case. ‘‘Our Supreme Court
has stated that ‘[i]n past cases interpreting § 51-183b and its predecessors,
we have held that the defect in a late judgment is that it implicates the trial
court’s power to continue to exercise jurisdiction over the parties before
it. . . . We have characterized a late judgment as voidable rather than as
void . . . and have permitted the lateness of a judgment to be waived by
the conduct or the consent of the parties.’ . . . Waterman v. United Carib-
bean, Inc., 215 Conn. 688, 692, 577 A.2d 1047 (1990). ‘[A]n unwarranted
delay in the issuance of a judgment does not automatically deprive a court
of personal jurisdiction. Even after the expiration of the time period within
which a judge has the power to render a valid, binding judgment, a court
continues to have jurisdiction over the parties until and unless they object.
It is for this reason that a late judgment is merely voidable, and not void.’
Id., 692–93.’’ Foote v. Commissioner of Correction, 125 Conn. App. 296,
300–301, 8 A.3d 524 (2010).
14
The plaintiff, although stating that it recognizes that it could have
appealed from this determination, has not argued that the amount was
improper.