Hylton v. Gunter

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HYLTON v. GUNTER—DISSENT
McDONALD, J., dissenting, with whom ZARELLA, J.,
joins. The majority articulates several reasons why we
should overrule Lord v. Mansfield, 50 Conn. App. 21,
717 A.2d 267, cert. denied, 247 Conn. 943, 723 A.2d
321 (1998), in which the Appellate Court held that a
judgment is not final for purposes of appeal under Gen-
eral Statutes § 52-263 when there has been an award
of common-law punitive damages, but a determination
of the amount of such damages had not yet been made.
I do not find any of these reasons persuasive. Indeed,
I believe that the majority’s decision adds further confu-
sion to our law on final judgments.
The majority’s principal rationale is that Lord is
inconsistent with this court’s emphasis on the benefits
of bright line rules in the final judgment context as set
forth in Paranteau v. DeVita, 208 Conn. 515, 522–23,
544 A.2d 634 (1988), and as expanded by Benvenuto
v. Mahajan, 245 Conn. 495, 715 A.2d 743 (1998). The
problem that these cases sought to avoid by adopting
this bright line rule, however, was the uncertainty of
ascertaining whether the particular request for attor-
ney’s fees in a given case was collateral to, or an integral
part of, the judgment on the merits of the action. See
Benvenuto v. Mahajan, supra, 501; Paranteau v.
DeVita, supra, 523. As I explain subsequently in this
dissenting opinion, punitive damages, unlike attorney’s
fees, are always integral to the judgment on the merits.
Moreover, no such case-by-case inquiry would be neces-
sary in any event if this court were to adopt Lord,
because it effectively adopted a bright line final judg-
ment rule for punitive damages.
Indeed, if this court’s primary interest is in clarity
and uniformity, such concerns should weigh strongly
in favor of adopting the holding in Lord. In so doing,
we would avoid the artificial distinction suggested by
the majority that punitive damages might be treated
differently for final judgment purposes depending on
whether their source is common law, statutory, or con-
tractual. Similarly, we would avoid differentiating the
treatment of damages depending on whether they are
labeled compensatory, statutory, consequential, exem-
plary, or punitive. It is well settled that ‘‘[a] judgment
rendered only upon the issue of liability without an
award of damages is interlocutory in character and not
a final judgment from which an appeal lies.’’ (Internal
quotation marks omitted.) Broadnax v. New Haven,
294 Conn. 280, 297, 984 A.2d 658 (2009); accord Balf
Co. v. Spera Construction Co., 222 Conn. 211, 212, 608
A.2d 682 (1992); Stroiney v. Crescent Lake Tax District,
197 Conn. 82, 84, 495 A.2d 1063 (1985). Because com-
mon-law punitive damages ‘‘serve primarily to compen-
sate the plaintiff for his injuries’’; (internal quotation
marks omitted) Matthiessen v. Vanech, 266 Conn. 822,
826 n.5, 836 A.2d 394 (2003); accord Bodner v. United
Services Automobile Assn., 222 Conn. 480, 492, 610 A.2d
1212 (1992); it is logical to treat such damages in the
same manner as other compensatory forms of damages
for final judgment purposes. See Anastasia v. General
Casualty Co. of Wisconsin, 307 Conn. 706, 717, 59 A.3d
207 (2013) (discussing that Bodner ‘‘concluded that the
plain meaning of the term damages encompassed com-
mon-law punitive damages’’ and that ‘‘common law
punitive damages are an element of damages’’ [internal
quotation marks omitted]).
The majority also contends that Lord improperly
relied on this court’s decision in Balf Co. v. Spera Con-
struction Co., supra, 222 Conn. 212, which had held
that there was no final judgment when the trial court
had not yet ruled on a postjudgment motion for discre-
tionary prejudgment interest. I disagree. In Balf Co.,
this court determined that there was no appealable
final judgment under such circumstances because, first,
‘‘unlike attorney’s fees, which at common law were
regarded as an element of costs and therefore not part
of the merits judgment . . . prejudgment interest tradi-
tionally has been considered part of the compensation
due [the] plaintiff. Second, unlike a request for attor-
ney’s fees or a motion for costs, a motion for discretion-
ary prejudgment interest does not [raise] issues wholly
collateral to the judgment in the main cause of action
. . . nor does it require an inquiry wholly separate from
the decision on the merits . . . . In deciding if and
how much prejudgment interest should be granted, a
district court must examine—or in the case of a post-
judgment motion, reexamine—matters encompassed
within the merits of the underlying action. . . . Third,
the conclusion that a postjudgment motion for discre-
tionary prejudgment interest postpones the finality of
a judgment on the merits helps further the important
goal of avoiding piecemeal appellate review of judg-
ments.’’ (Citation omitted; internal quotation marks
omitted.) Id., 214–15, quoting Osterneck v. Ernst &
Whinney, 489 U.S. 169, 175–77, 109 S. Ct. 987, 103 L.
Ed. 2d 146 (1989). These reasons apply with equal or
greater force to an award of common-law punitive dam-
ages. Because I previously have addressed the first of
these reasons, and the applicability of the third reason
to the holding in Lord is self-evident, I focus on the
second reason cited in Balf Co. v. Spera Construction
Co., supra, 215.
In order to obtain an award of common-law punitive
damages, the pleadings must allege and the evidence
must be sufficient to allow the trier of fact to find that
the defendant exhibited ‘‘a reckless indifference to the
rights of others or an intentional and wanton violation
of those rights.’’ (Internal quotation marks omitted.)
Alaimo v. Royer, 188 Conn. 36, 42, 448 A.2d 207 (1982);
see also Markey v. Santangelo, 195 Conn. 76, 77, 485
A.2d 1305 (1985) (‘‘[t]o furnish a basis for recovery of
[common-law punitive] damages, the pleadings must
allege and the evidence must show wanton or wilful
malicious misconduct, and the language contained in
the pleadings must be sufficiently explicit to inform
the court and opposing counsel that such damages are
being sought’’). It is the responsibility of the trier of
fact to determine whether such damages are to be
awarded. See Larsen Chelsey Realty Co. v. Larsen, 232
Conn. 480, 517–18, 656 A.2d 1009 (1995) (‘‘It is well
settled . . . that it is the responsibility of the trier of
fact to award common law punitive damages for inten-
tional torts. Kenny v. Civil Service Commission, 197
Conn. 270, 277, 496 A.2d 956 [1985]; Gionfriddo v. Avis
Rent A Car System, Inc., 192 Conn. 280, 295, 472 A.2d
306 [1984]; Vogel v. Sylvester, 148 Conn. 666, 673, 174
A.2d 122 [1961]; Hanna v. Sweeney, 78 Conn. 492, 494,
62 A. 785 [1906]; Bennett v. Gibbons, 55 Conn. 450, 452,
12 A. 99 [1887]. This case was tried to a jury. The jury,
as the trier of fact, and not the trial court, would ordi-
narily have had the authority to award punitive dam-
ages.’’); but see Chykirda v. Yanush, 131 Conn. 565,
569, 41 A.2d 449 (1945) (‘‘punitive damages are not
properly recoverable in the absence of evidence as to
the elements entering into a determination of them
except for those items of taxable costs of which the
trial court can take judicial notice’’). Because of these
factors, a challenge to an award of punitive damages
often will relate directly to the merits of the action.
See, e.g., Matthiessen v. Vanech, supra, 266 Conn. 834
(addressing defendants’ claim that trial court’s charge
improperly allowed jury to find punitive damages
because defendant’s conduct, if proven, constituted
negligence, not recklessness).
Finally, the majority contends that Lord overlooked
‘‘the common purpose and effect of both statutory attor-
ney’s fees and common-law punitive damages, namely,
to ensure the full compensation of plaintiffs in mitiga-
tion of the effects of the American rule.’’ Again, I dis-
agree. Despite our emphasis on the compensatory
function of common-law punitive damages, as the name
suggests, we also have recognized that the award serves
a punitive and deterrent function. See Anastasia v.
General Casualty Co. of Wisconsin, supra, 307 Conn.
709 n.2; Waterbury Petroleum Products, Inc. v. Canaan
Oil & Fuel Co., 193 Conn. 208, 237–38, 477 A.2d 988
(1984). In addition, although the two awards may com-
pensate for the same type of expenses, that is not always
the case. An award of common-law punitive damages
entitles a party to all litigation costs, less taxable
expenses; Hanna v. Sweeney, supra, 78 Conn. 494;
indeed, some elements of such costs may exceed the
amount of attorney’s fees. See Bridgeport Harbour
Place I, LLC v. Ganim, 131 Conn. App. 99, 169, 30
A.3d 703 (2011) (plaintiff awarded punitive damages in
amount of $210,039, consisting of $54,600 in attorney’s
fees and $155,439 for costs); see also SVS II Partnership
v. Patel, Superior Court, judicial district of Hartford,
Docket No. CV-05-4016571-S (January 14, 2010) (deem-
ing it proper to award attorney’s fees and experts’ fees
for punitive damages); Fasi v. Murphy-Mancini, Supe-
rior Court, judicial district of Hartford-New Britain at
Hartford, Docket No. CV-91-70 20 62 (March 5, 1992)
(‘‘[a]ttorney’s fees and expert fees [litigation costs] are
proper elements of punitive damages’’). Depending on
the source of authority for an award of attorney’s fees,
litigation costs may not be authorized, or such costs
and fees may be limited in some manner. Compare
General Statutes § 42-399 (d) (1) (authorizing reason-
able attorney’s fees but not providing for litigation
costs) and General Statutes § 46a-82e (d) (4) (authoriz-
ing court costs and attorney’s fees not to exceed total
of $500), with General Statutes § 45a-667m (b) (author-
izing necessary and reasonable expenses, including
attorney’s fees, investigative fees, court costs, commu-
nication expenses, medical examination expenses, wit-
ness fees and expenses, and travel expenses).
Accordingly, I would adopt, rather than overrule, the
final judgment rule in Lord.
I respectfully dissent.