Ledyard v. WMS Gaming, Inc. ( 2019 )

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TOWN OF LEDYARD v. WMS GAMING, INC.
(AC 39746)
DiPentima, C. J., and Keller and Noble, Js.
Syllabus
The plaintiff town brought this action against the defendant, W Co., seeking
to collect unpaid personal property taxes it had imposed on slot
machines that W Co. owned and leased for use at a casino. Thereafter,
the Indian tribe that owned the casino filed an action in federal court
against the town, among others, challenging the town’s authority to
impose personal property taxes on the slot machines. After a federal
appeals court determined that the town did have authority to impose
taxes, the town and W Co. entered into a stipulation regarding the unpaid
taxes, interest, penalties, and attorney’s fees in the present action. The
town and W Co., however, disputed whether the trial court in the present
action could also find W Co. liable for the attorney’s fees the town
incurred in defending the federal action in which W Co. was not a party,
and, therefore, they filed cross motions for summary judgment as to
liability only on that issue. The trial court granted the town’s motion
for summary judgment, concluding that the town was entitled to the
attorney’s fees it had incurred in defending the federal action pursuant
to the statute (§ 12-161a) that requires a property owner to pay the
attorney’s fees of a municipality in an action brought to collect delinquent
personal property taxes when the fees are ‘‘as a result of and directly
related to’’ the collection proceeding. W Co. appealed to this court,
which granted the town’s motion to dismiss the appeal for lack of subject
matter jurisdiction and dismissed the appeal. Thereafter, W Co., on the
granting of certification, appealed to our Supreme Court, which reversed
the judgment of this court and remanded the case to this court with
direction to deny the town’s motion to dismiss and for further proceed-
ings. On remand, held that the trial court improperly granted the town’s
motion for summary judgment because it improperly applied an expan-
sive interpretation of § 12-161a to characterize the attorney’s fees
incurred in the federal action as falling within the ambit of fees directly
related to the collection proceeding presently before this court: the
attorney’s fees attributable to the federal action were not directly related
to the collection proceeding, as the federal action was a collateral action
the resolution of which, although significant to the ultimate resolution
of the tax collection issue in the present action, did not result directly
in a final determination of the rights and obligations of the parties
relative to the claimed delinquent tax, and, therefore, given the restrictive
language of § 12-161a, only litigation fees incurred in the prosecution
of the collection action itself would qualify as attorney’s fees directly
related to the collection proceeding; moreover, this court’s conclusion
that the attorney’s fees attributable to the federal action were not directly
related to the collection proceeding was supported by the claims that
were at issue in the federal action, which were related solely to the
Indian tribe’s defense against the town’s alleged encroachment upon
aspects of tribal sovereignty protected under federal law, by consider-
ation of the relationship of § 12-161a to other statutes, which indicated
that the legislature’s use of the adverb directly establishes a greater
limitation on the nexus between the attorney’s fees sought and the
proceeding in which they are requested than that urged by the town in
the present case, and by certain relevant authority from our Supreme
Court; accordingly, the trial court’s judgment was reversed and the case
was remanded with direction to deny the town’s motion for summary
judgment and to grant W Co.’s motion for summary judgment.
Argued May 21—officially released September 17, 2019
Procedural History
Action to recover unpaid personal property taxes,
and for other relief, brought to the Superior Court in
the judicial district of New London, where the parties
entered into a stipulated agreement; thereafter, the
court, Vacchelli, J., granted the plaintiff’s motion for
summary judgment as to liability and denied the defen-
dant’s motion for summary judgment as to liability, and
the defendant appealed to this court, which granted the
plaintiff’s motion to dismiss the appeal, from which the
defendant, on the granting of certification, appealed to
the Supreme Court, which reversed this court’s judg-
ment and remanded the case to this court with direction
to deny the plaintiff’s motion to dismiss and for further
proceedings. Reversed; judgment directed.
Aaron S. Bayer, with whom was David R. Roth, for
the appellant (defendant).
Lloyd L. Langhammer, for the appellee (plaintiff).
Opinion
NOBLE, J. In this action to collect unpaid personal
property taxes, the defendant, WMS Gaming, Inc.,
appeals from the summary judgment as to liability only
rendered by the trial court in favor of the plaintiff, the
town of Ledyard, awarding it attorney’s fees pursuant
to General Statutes § 12-161a.1 The defendant’s sole
claim on appeal is that the trial court improperly con-
cluded that the defendant was liable for attorney’s fees
incurred by the plaintiff while litigating a collateral
action in federal court in addition to the fees incurred
while pursuing this action. Specifically, it argues that
the court improperly determined that the fees incurred
in the collateral action were ‘‘as a result of and directly
related to’’ this collection action within the meaning
of § 12-161a. We agree and, accordingly, reverse the
judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. On August 3, 2006, two years prior
to commencing the present action, the Mashantucket
Pequot Tribal Nation (Tribal Nation) filed an action
in the United States District Court for the District of
Connecticut challenging the authority of the state of
Connecticut and the plaintiff to impose property taxes
on slot machines owned by Atlantic City Coin & Slot
Co. (AC Coin) and leased to the Tribal Nation, for use
in its gaming operations. In that complaint, the Tribal
Nation alleged that the plaintiff lacked the authority
to impose the property tax because such taxation is
preempted by federal regulation of Indian gaming pur-
suant to both the Indian Gaming Regulatory Act, 25
U.S.C. §§ 2701-2721 (IGRA), and the Final Mashan-
tucket Pequot Gaming Procedures, 56 Fed. Reg. 24996
(May 31, 1991), and that the taxation was an illegal
interference with the Tribal Nation’s sovereignty. The
present action was filed on June 23, 2008, to collect
unpaid personal property taxes for gaming equipment
owned by the defendant and leased to the Tribal Nation
for its gaming operations.
Our Supreme Court, in a previous appeal from the
judgment of this court, recited the following additional
relevant facts and procedural history: ‘‘[T]he plaintiff [in
the present action] sought $18,251.23 in unpaid personal
property taxes, plus costs, interest, and penalties. In
addition, the plaintiff sought attorney’s fees pursuant
to . . . § 12-161a.
‘‘Shortly after the plaintiff had commenced the under-
lying state action, the Tribal Nation filed [a second]
action in the United States District Court for the District
of Connecticut challenging the authority of the state of
Connecticut2 and the plaintiff to impose the taxes at
issue in the present state action.3 Although it was not
a party to the federal action commenced by the Tribal
Nation, the defendant filed a motion to stay the present
state action pending the outcome of the federal action,
which the trial court, Martin, J., granted.
‘‘On March 27, 2012, the District Court ruled on cross
motions for summary judgment filed in the . . . federal
action. The District Court, determining that the author-
ity of the state and the plaintiff to impose the taxes was
preempted by federal law, granted the Tribal Nation’s
motion for summary judgment and denied separate
motions for summary judgment filed by the plaintiff
and the state . . . . See Mashantucket Pequot Tribe
v. Ledyard, Docket No. 3:06CV1212 (WWE), 2012 WL
1069342, *12 (D. Conn. March 27, 2012), rev’d, 722 F.3d
457 (2d Cir. 2013). On July 15, 2013, the United States
Court of Appeals for the Second Circuit reversed the
District Court’s judgment, concluding that the authority
of the state and the plaintiff to impose the taxes was
not preempted by federal law. See Mashantucket
Pequot Tribe v. Ledyard, 722 F.3d 457, 477 (2d Cir.
2013).
‘‘After the proceedings had resumed in the present
state action, the parties executed a stipulation. Under
the stipulation, the parties agreed that the defendant
had tendered payment to the plaintiff for all outstanding
taxes, accrued interest, and accrued penalties at issue.
They further agreed that the plaintiff was entitled to
reasonable attorney’s fees and costs incurred in the
underlying state action, the amount of which would be
determined by the trial court and the payment of which
would be accepted by the plaintiff as satisfaction of
all of the taxes, interest, penalties, attorney’s fees,
and costs recoverable by the plaintiff with respect to
the underlying state action. They disputed, however,
whether the trial court could also find the defendant
liable for attorney’s fees incurred by the plaintiff in
defense of the federal action commenced by the Tribal
Nation to which the defendant was not a party . . . .
The parties agreed to submit to the trial court the issue
of whether the defendant was liable for the federal
action attorney’s fees.
‘‘After executing the stipulation, the parties filed . . .
motions for summary judgment as to liability only with
respect to the federal action attorney’s fees. On October
6, 2016, the trial court, Vacchelli, J., issued its memoran-
dum of decision granting the plaintiff’s motion for sum-
mary judgment, denying the defendant’s motion for
summary judgment, and rendering . . . judgment as to
liability only in favor of the plaintiff with respect to the
federal action attorney’s fees. The trial court concluded
that the defendant was liable for the federal action
attorney’s fees pursuant to § 12-161a. The trial court
further stated that the plaintiff could file a motion for
attorney’s fees within thirty days and that a hearing
would be scheduled thereafter to determine the amount
of the attorney’s fees to which the plaintiff is entitled.
Shortly thereafter, on October 11, 2016, the plaintiff
filed a motion for attorney’s fees.
‘‘On October 25, 2016, [before] the trial court [sched-
uled] a hearing on the plaintiff’s motion for attorney’s
fees, the defendant appealed [from] the trial court’s
decision with respect to the federal action attorney’s
fees [to the Appellate Court].’’ (Footnotes added; inter-
nal quotation marks omitted.) Ledyard v. WMS Gam-
ing, Inc., 330 Conn. 75, 78–80, 191 A.3d 983 (2018).
The plaintiff subsequently filed a motion to dismiss
the appeal for lack of subject matter jurisdiction, which
this court granted on the ground that the trial court’s
decision was not yet an appealable final judgment
because it had yet to determine the amount of attorney’s
fees owed to the plaintiff. Ledyard v. WMS Gaming,
Inc., 171 Conn. App. 624, 635, 157 A.3d 1215 (2017),
rev’d, 330 Conn. 75, 191 A.3d 983 (2018). Thereafter,
our Supreme Court reversed the judgment of this court
and remanded the case back to this court with direction
to deny the plaintiff’s motion to dismiss. Ledyard v.
WMS Gaming, Inc., supra, 330 Conn. 91. On remand,
we now address the merits of the defendant’s claim.
Further facts will be provided as necessary.
We begin our analysis by setting forth the applicable
standards of review and relevant legal principles. ‘‘Prac-
tice Book § [17-49] provides that summary judgment
shall be rendered forthwith if the pleadings, affidavits
and any other proof submitted show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. . . .
In deciding a motion for summary judgment, the trial
court must view the evidence in the light most favorable
to the nonmoving party. . . . The party seeking sum-
mary judgment has the burden of showing the absence
of any genuine issue [of] material [fact] which, under
applicable principles of substantive law, entitle him to
a judgment as a matter of law . . . and the party oppos-
ing such a motion must provide an evidentiary founda-
tion to demonstrate the existence of a genuine issue
of material fact. . . . [I]ssue-finding, rather than issue-
determination, is the key to the procedure. . . . [T]he
trial court does not sit as the trier of fact when ruling
on a motion for summary judgment. . . . [Its] function
is not to decide issues of material fact, but rather to
determine whether any such issues exist. . . . Our
review of the decision to grant a motion for summary
judgment is plenary. . . . We therefore must decide
whether the court’s conclusions were legally and logi-
cally correct and find support in the record.’’ (Internal
quotation marks omitted.) Perez v. Metropolitan Dis-
trict Commission, 186 Conn. App. 466, 471–72, 200 A.3d
202 (2018).
The defendant’s claim implicates the proper interpre-
tation and application of § 12-161a, which is a question
of law over which our review is plenary. See Kaminsky
v. Commissioner of Emergency Services & Public Pro-
tection, 188 Conn. App. 109, 112, 203 A.3d 1252 (2019).
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extra textual evidence of the meaning of the
statute shall not be considered. . . . The test to deter-
mine ambiguity is whether the statute, when read in
context, is susceptible to more than one reasonable
interpretation.’’ (Internal quotation marks omitted.) Id.,
112–13. Moreover, because § 12-161a is a statute in dero-
gation of the common-law American rule pursuant to
which attorney’s fees are not generally allowed to the
successful litigant absent a contractual or statutory
exception, it must be strictly construed and ‘‘limited
to matters clearly brought within its scope.’’ (Internal
quotation marks omitted.) Perry v. Perry, 312 Conn.
600, 623, 95 A.3d 500 (2014). Mindful of these foregoing
legal principles, we next address the defendant’s claim.
In the view of the defendant, the trial court improp-
erly rendered summary judgment in favor of the plaintiff
because it adopted an expansive interpretation of § 12-
161a that impermissibly permitted recovery for attor-
ney’s fees—those attributable to the federal action—
which were not ‘‘directly related’’ to the present action.
The defendant asserts that this is so because the federal
action (1) involved a separate case brought against the
plaintiff in another jurisdiction by the Tribal Nation, an
entity that is not a party to the present action, (2) was
brought to assert tribal sovereignty under federal law,
not to contest the defendant’s tax liability, and (3) was
brought two years before the plaintiff filed the present
collection action and would have been litigated regard-
less of whether the plaintiff brought the present claim.
The plaintiff argues that the trial court correctly con-
cluded that it was entitled to recover the attorney’s fees
attributable to the federal action because they were
incurred ‘‘as a result of and directly related to’’ this
collection proceeding within the meaning of § 12-161a.
We agree with the defendant.
Our analysis begins, as it must, with consideration
of the text of § 12-161a and its relationship to other
statutes. See General Statutes § 1-2z. The phrase ‘‘as a
result of’’ has been interpreted by our Supreme Court
as synonymous with ‘‘proximate cause,’’ that is, ‘‘[a]n
actual cause that is a substantial factor in the [result]
. . . .’’ (Internal quotation marks omitted.) Abrahams
v. Young & Rubicam, Inc., 240 Conn. 300, 306, 692 A.2d
709 (1997). The next consideration is that of the phrase
‘‘directly related.’’ Clearly, we are not at liberty to con-
strue the phrase ‘‘directly related’’ as identical with that
of ‘‘as a result of’’ because that would render the former
superfluous in violation of cardinal principles of statu-
tory interpretation. See, e.g., Williams v. Housing
Authority, 327 Conn. 338, 356, 174 A.3d 137 (2017).
Instead, this additional modifier imports a more restric-
tive proximal nexus to the collection proceeding in
which the attorney’s fees are requested than the phrase
‘‘as a result of.’’ The adverb ‘‘directly’’ means ‘‘in a direct
manner’’ and ‘‘direct’’ is defined as ‘‘from point to point
without deviation: by the shortest way . . . from the
source without interruption or diversion . . . without
an intervening agency . . . .’’ Merriam-Webster’s Colle-
giate Dictionary (11th Ed. 2003) p. 353; see Board of
Selectman v. Freedom of Information Commission,
294 Conn. 438, 449, 984 A.2d 748 (2010) (‘‘when . . . a
statute does not define a term, we may look to the
dictionary to determine the commonly approved mean-
ing of the term’’). Mindful of the restrictive effect of
the phrase ‘‘directly related,’’ we conclude that the attor-
ney’s fees attributable to the federal action are not
directly related to the collection proceeding.
The federal action was a collateral action the resolu-
tion of which, although significant to the ultimate reso-
lution of the tax collection issue in the present action,
did not result directly in a final determination of the
rights and obligations of the parties relative to the
claimed delinquent tax. Given its restrictive language,
only litigation fees incurred in the prosecution of the
collection action itself would qualify as attorney’s fees
directly related to the collection proceeding as contem-
plated by § 12-161a.
This conclusion is supported by the claims that were
at issue in the federal action. The Court of Appeals for
the Second Circuit considered a number of defenses
raised by the plaintiff and the state to the action, includ-
ing the argument that it was barred by the Tax Injunc-
tion Act (TIA), 28 U.S.C. § 1341. The TIA provides that
‘‘district courts shall not enjoin, suspend or restrain the
assessment, levy or collection of any tax under State
law where a plain, speedy and efficient remedy may be
had in the courts of such State.’’ 28 U.S.C. § 1341. The
Tribal Nation claimed an exception to the operation of
the TIA as recognized by the United States Supreme
Court that permitted Indian tribes to vindicate interests
protected by federal legislation and federal programs.
See Moe v. Confederated Salish & Kootenai Tribes, 425
U.S. 463, 473, 96 S. Ct. 1634, 48 L. Ed. 2d 96 (1976). The
Second Circuit agreed with the Tribal Nation, observing
that ‘‘[i]nsofar as the [Tribal Nation] is suing on behalf
of the third-party vendors [AC Coin and the defendant]
who are the taxed parties, its suit (like theirs) is barred
by the TIA. Here, the [Tribal Nation] is suing to defend
against the [plaintiff’s] and State’s alleged encroach-
ment upon aspects of tribal sovereignty protected by
the Indian Trader Statutes and IGRA.’’ Mashantucket
Pequot Tribe v. Ledyard, supra, 722 F.3d 464–65. More-
over, the Second Circuit rejected a claim that the Tribal
Nation lacked standing to complain of the ‘‘monetary
injury asserted by the taxed parties’’ because of the
principle that ‘‘a tribe has an interest in protecting tribal
self-government from the assertion by a state that it
has regulatory or taxing authority over Indians and non-
Indians conducting business on tribal reservations.’’
(Internal quotation marks omitted.) Id., 463. Thus, far
from incurring attorney’s fees directly related to an
action that would result in a final determination of
the rights and obligations of the parties relative to the
claimed delinquent tax, the attorney’s fees in the federal
action were incurred in a collateral deviation or diver-
sion from such a final determination. Moreover, the
attorney’s fees in the federal action can hardly be
viewed as directly related to the tax delinquency pro-
ceeding involving the defendant if they would have been
incurred regardless of whether that proceeding had
been initiated. Thus the plain meaning of the text of
§ 12-161a compels the conclusion that the attorney’s
fees attributable to the federal action are not directly
related to the present action.
Our conclusion is further bolstered when consider-
ing the relationship of § 12-161a to other statutes. See
General Statutes § 1-2z. A number of decisions from
our Superior Court have considered the implications of
the phrase ‘‘directly related’’ in the context of a similar
statute, General Statutes § 12-193,4 which authorizes
recovery of, inter alia, attorneys’ fees incurred by a
municipality ‘‘as a result of’’ and ‘‘directly related’’ to
the foreclosure of a tax lien. These decisions reflect
the principle that the legislature’s use of the adverb
‘‘directly’’ establishes a greater limitation on the nexus
between the attorney’s fees sought and the proceeding
in which they are requested than that urged by the
plaintiff in the present case. See Milford Tax, LLC v.
Paradigm Milford, LLC, Superior Court, judicial dis-
trict of Ansonia-Milford, Docket No. CV-XX-XXXXXXX-S,
2015 WL 3875386, (May 28, 2015) (60 Conn. L. Rptr.
473) (prior bankruptcy proceedings involving fore-
closed property not directly related to municipal tax
foreclosure action); Groton v. First Groton, LLC, Supe-
rior Court, judicial district of New London, Docket No.
CV-XX-XXXXXXX-S, 2011 WL 1470809 (March 25, 2011)
(fees attributable to prior actions to foreclose property
by other lienors and bankruptcy proceedings initiated
by other creditors not recoverable because not directly
related to foreclosure action); White Sands Beach
Assn., Inc. v. Bombaci, Superior Court, judicial district
of New London, Docket No. CV-XX-XXXXXXX-S, 2009 WL
1622788, (May 12, 2009) (trial of counterclaim ques-
tioning status of plaintiff quasi municipal corporation,
and not the foreclosure of tax liens, not directly related
to foreclosure of tax lien); Redding v. Elfire, LLC, Supe-
rior Court, judicial district of Danbury, Docket No. CV-
XX-XXXXXXX-S, 2004 WL 3090656, (December 1, 2004)
(attorney’s fees incurred in related quiet title action
brought by taxpayer not directly related to foreclosure
action).5
Moreover, authority from our Supreme Court also
lends support to our conclusion. The case of Mechanics
Savings Bank v. Tucker, 178 Conn. 640, 425 A.2d 124
(1979), is instructive for its application of General Stat-
utes § 49-7,6 which ‘‘authorizes agreements contained
in notes and mortgages to provide for the payment of
attorney’s fees incurred not only in collection of the
debt or foreclosure of the mortgage, but also ‘in pro-
tecting or sustaining the lien of such mortgage.’ ’’
(Emphasis added.) Id., 647. The defendant in Mechanics
Savings Bank appealed from a judgment of strict fore-
closure rendered against him. Id., 641. One of the issues
on appeal was the award of attorney’s fees to the plain-
tiff, which were attributable to collateral antitrust and
bankruptcy proceedings brought by the defendant. Id.,
647. The court held that because the antitrust action
sought negation of the defendant’s obligations under
the note and mortgage, it constituted an action for the
‘‘protection of the lien of the mortgage within . . . § 49-
7.’’ Id., 648. It did not characterize that action as a
‘‘proceeding for the collection of the debt . . . .’’ Gen-
eral Statutes § 49-7. Similarly, the court found recover-
able the attorney’s fees attributable to the collateral
bankruptcy proceedings even though they did ‘‘not
impinge directly on valid security interests . . . .’’
(Emphasis added.) Id., 648. The attorneys’ fees from
the collateral actions were recoverable not because
they directly derived from the ‘‘proceeding for collec-
tion of the debt,’’ but because they were more properly
characterized as actions to ‘‘protect or sustain the lien
of the mortgage . . . .’’ General Statutes § 49-7.
It is also significant that § 49-7 distinguishes between
a direct action to collect the debt and an action collat-
eral to the direct action. Indeed, the legislature was
free to utilize similar language in § 12-161a to enable
the recovery of attorney’s fees incurred from actions
collateral to collection proceedings, but it declined to
do so, instead electing to utilize the more restrictive
wording ‘‘directly related’’ to bar such a possibility.
‘‘Where a statute, with reference to one subject contains
a given provision, the omission of such provision from
a similar statute concerning a related subject . . . is
significant to show that a different intention existed.
. . . That tenet of statutory construction is well
grounded because [t]he General Assembly is always
presumed to know all the existing statutes and the effect
that its action or non-action will have upon any one
of them.’’ (Internal quotation marks omitted.) Hatt v.
Burlington Coat Factory, 263 Conn. 279, 310, 819 A.2d
260 (2003).
Accordingly, we conclude that the trial court erred
in granting the plaintiff’s motion for summary judgment
because it improperly applied an expansive interpreta-
tion of § 12-161a to characterize the attorney’s fees
incurred in the federal action as falling within the ambit
of fees directly related to the collection proceeding
presently before this court.
The judgment is reversed and the case is remanded
with direction to deny the plaintiff’s motion for sum-
mary judgment and to grant the defendant’s motion for
summary judgment.
In this opinion the other judges concurred.
1
General Statutes § 12-161a provides in relevant part: ‘‘In the institution
of proceedings by any municipality to enforce collection of any delinquent
tax on personal property from the owner of such property, through . . .
any other proceeding in law in the name of the municipality for purposes
of enforcing such collection, such person shall be required to pay any court
costs, reasonable appraiser’s fees or reasonable attorney’s fees incurred by
such municipality as a result of and directly related to such levy and sale,
enforcement of lien or other collection proceedings.’’
2
The state of Connecticut intervened as a defendant in both actions.
3
The Tribal Nation’s second federal action was subsequently consolidated
with its first federal action. See Mashantucket Pequot Tribe v. Ledyard,
Docket No. 3:06CV1212 (WWE), 2012 WL 1069342 (D. Conn. March 27, 2012),
rev’d, 722 F.3d 457 (2d Cir. 2013). For ease of discussion, we refer to these
joined actions as the federal action.
4
General Statutes § 12-193 provides in relevant part: ‘‘Court costs, reason-
able appraiser’s fees, and reasonable attorney’s fees incurred by a municipal-
ity as a result of any foreclosure action brought pursuant to section 12-181
or 12-182 and directly related thereto shall be taxed in any such proceeding
against any person or persons having title to any property so foreclosed
and may be collected by the municipality once a foreclosure action has
been brought pursuant to section 12-181 or 12-182. . . .’’ (Emphasis added.)
5
One other decision of the Superior Court, Monroe v. Mandanici, Superior
Court, judicial district of Fairfield, Docket No. CV-XX-XXXXXXX-S, 1995 WL
107185 (March 2, 1995) (awarding attorney’s fees for defending set off and
counterclaim raised in foreclosure action that constituted defense thereto),
is consistent with the subsequent line of cases because the related attorney’s
fees were incurred in the same action as the foreclosure.
6
General Statutes § 49-7 provides: ‘‘Any agreement contained in a bill, note,
trade acceptance or other evidence of indebtedness, whether negotiable or
not, or in any mortgage, to pay costs, expenses or attorneys’ fees, or any
of them, incurred by the holder of that evidence of indebtedness or mortgage,
in any proceeding for collection of the debt, or in any foreclosure of the
mortgage, or in protecting or sustaining the lien of the mortgage, is valid,
but shall be construed as an agreement for fair compensation rather than
as a penalty, and the court may determine the amounts to be allowed for
those expenses and attorneys’ fees, even though the agreement may specify
a larger sum.’’ (Emphasis added.)