Burns v. Adler

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BURNS v. ADLER—DISSENT
ROBINSON, J., with whom ESPINOSA, J., joins, dis-
senting. I respectfully disagree with the majority’s deci-
sion in the first certified appeal, SC 19560, to reverse
the judgment of the Appellate Court affirming the trial
court’s judgment in favor of the plaintiff contractor,
James E. Burns, Jr., on the ground that the conduct of
the defendant homeowner, David Y. Adler,1 did not fall
within the bad faith exception to the statutory bar on
the enforcement of contracts that do not comply with
the requirements set forth in General Statutes (Rev. to
2007) § 20-429.2 See Burns v. Adler, 158 Conn. App. 766,
806, 120 A.3d 555 (2015). Specifically, I disagree with
the majority’s conclusions, set forth in part II of its
opinion, that: (1) the bad faith exception is applicable
only when a homeowner enters into an agreement with,
or accepts services from, a home improvement contrac-
tor knowing that, under the Home Improvement Act
(act), General Statutes § 20-418 et seq., the defective
contract provides them with an ‘‘ ‘escape hatch’ ’’ from
payment; and (2) the defendant’s repudiation of the
contract was the product of a good faith dispute over the
goods and services provided by the plaintiff.3 Instead, I
would hold that the bad faith exception, as articulated
in Habetz v. Condon, 224 Conn. 231, 237–40, 618 A.2d
501 (1992), applies when a homeowner has acted in a
manner inconsistent with the duty of good faith and
fair dealing in the course of his relationship with a
contractor, as the trial court properly found to have
occurred in the present case. As a result of this conclu-
sion, I would reach the second certified appeal, SC
19561,4 and conclude that the Appellate Court properly
determined that the plaintiff was not entitled to an
award of attorney’s fees for the foreclosure of his
mechanic’s lien pursuant to General Statutes § 52-249
(a).5 Burns v. Adler, supra, 808. Because I would affirm
the judgment of the Appellate Court, I respectfully
dissent.
I
I begin by noting my agreement with the background
facts and procedural history set forth in the majority
opinion. I also agree in limited part with the majority’s
statement of the standard of review. Specifically, I agree
that the issue of whether the plaintiff can invoke the
bad faith exception in this case presents a question of
law over which our review is plenary, albeit only to the
extent that the defendant’s claims on appeal require
this court to define the contours of that doctrine. See,
e.g., Thompson v. Orcutt, 257 Conn. 301, 308–309, 777
A.2d 670 (2001) (application of equitable doctrine of
unclean hands is committed to trial court discretion,
but interpretation of that doctrine is question of law
subject to plenary review); see also Walpole Woodwork-
ers, Inc. v. Manning, 307 Conn. 582, 588, 57 A.3d 730
(2012) (‘‘[t]he determination of whether an equitable
doctrine applies in a particular case is a question of
law subject to plenary review’’). With respect, however,
to the application of the bad faith exception, I disagree
with the majority’s statement of the standard of review
to the extent it conflicts with the well established princi-
ple that ‘‘[w]hether a party has acted in bad faith is a
question of fact, subject to review only for clear error.’’
Renaissance Management Co. v. Connecticut Housing
Finance Authority, 281 Conn. 227, 240, 915 A.2d 290
(2007); see MacMillan v. Higgins, 76 Conn. App. 261,
271–73, 822 A.2d 246, cert. denied, 264 Conn. 907, 826
A.2d 177 (2003); see also Habetz v. Condon, supra, 224
Conn. 237 n.11. This reflects the fact that a finding of
bad faith turns on subordinate considerations such as
the relevant actor’s motives and intent, which often
may only be inferred from circumstantial evidence.6
See, e.g., Wadia Enterprises, Inc. v. Hirschfeld, 224
Conn. 240, 250, 618 A.2d 506 (1992).
A
I begin with the majority’s analysis of the defendant’s
claims on appeal, which, notwithstanding footnote 16
of the majority opinion, may be misconstrued as
embracing an unduly narrow approach to the bad faith
exception. In particular, I wish to emphasize my dis-
agreement with the defendant’s position, founded
largely on this court’s decision in Wadia Enterprises,
Inc. v. Hirschfeld, supra, 224 Conn. 240, that the bad
faith exception is applicable only to cases wherein the
homeowner entered into an agreement or accepted ser-
vices from a contractor knowing that the act gave the
homeowner an ‘‘escape hatch’’ from payment because
the contract was defective under § 20-429 (a). I do not
read our articulation of the bad faith exception in
Habetz as so narrowly circumscribed.
At the outset, I briefly discuss the statutory scheme
governing home improvement contract disputes and the
history of the bad faith exception in Habetz. ‘‘Section 20-
429 (a) provides that no home improvement contract
shall be valid or enforceable against a homeowner
unless it contains certain enumerated criteria. The aim
of the [act] is to promote understanding on the part of
consumers with respect to the terms of home improve-
ment contracts and their right to cancel such contracts
so as to allow them to make informed decisions when
purchasing home improvement services. . . .
‘‘In Barrett Builders v. Miller, 215 Conn. 316, 328,
576 A.2d 455 (1990), this court held that a contractor
who did not comply with the written contract require-
ment of the act could not recover in restitution. This
result was subsequently modified by one common-law
and one statutory exception. First, in Habetz v. Condon,
supra, 224 Conn. 240, this court held that contractors
may recover in restitution despite noncompliance with
§ 20-429 (a), when homeowners invoke the protections
of the act in bad faith. Subsequently, the legislature
enacted No. 93-215, § 1, of the 1993 Public Acts, now
codified at § 20-429 (f), which allows recovery of pay-
ment for work performed based on the reasonable value
of services which were requested by the owner for
partial noncompliance with certain requirements of the
act when the court determines that it would be inequita-
ble to deny such recovery. Thus, both Habetz and § 20-
429 (f) provide for recovery in quantum meruit despite
a contractor’s noncompliance with certain statutory
requirements.’’ (Citation omitted; footnotes omitted;
internal quotation marks omitted.) Walpole Woodwork-
ers, Inc. v. Manning, supra, 307 Conn. 586–87; see also
footnote 2 of this dissenting opinion.
In formally adopting the bad faith exception,7 this
court emphasized in Habetz that its ‘‘central element
. . . is the recognition that to allow the homeowner
who acted in bad faith to repudiate the contract and
hide behind the act would be to allow him to benefit
from his own wrong, and indeed encourage him to act
thusly. Proof of bad faith therefore serves to preclude
the homeowner from hiding behind the protection of
the act. . . . [W]e need look no further than the maxim
that no person may take advantage of his own wrong.
. . . This deeply rooted principle has been applied in
many diverse classes of cases by both law and equity
courts and has frequently been employed to bar what
would otherwise be inequitable reliance on statutes.’’8
(Citations omitted; footnote omitted.) Habetz v. Con-
don, supra, 224 Conn. 237–38. The court emphasized
that the ‘‘bad faith exception is designed to prevent a
party’s disavowal of previous conduct if such repudia-
tion would not be responsive to demands of justice and
good conscience. The law does not permit the exercise
of a right to repudiate a contract when the exercise of
such a right in bad faith would work an injustice. Every
contract carries an implied covenant of good faith and
fair dealing requiring that neither party do anything that
will injure the right of the other to receive the benefits
of the agreement. . . . To demand this implicit compo-
nent but do nothing about its absence would be at
best incongruous, and, more accurately, grossly unfair.
Thus, a contractor, otherwise precluded from recov-
ering moneys owed for his work because of a violation
of the act, must be permitted to assert that the home-
owner’s bad faith precludes him from safely repudiating
the contract and hiding behind the act in order to bar
the contractor’s recovery.’’ (Citations omitted.) Id., 238.
Acknowledging that this conclusion potentially ‘‘frus-
trate[s]’’ the purpose of the act, the court emphasized
that the bad faith doctrine is ‘‘founded on public policy
and contain[s] a strong strain of estoppel,’’ and is
intended to ‘‘prevent a misbehaving party from invoking
the benefits of a statute which is absolute on its face.
To deny the contractor any opportunity of recovery
after he has completed his end of the bargain if he has
persuaded the trier of fact that a statutory remedy is
being invoked by a homeowner in bad faith would be
to countenance a gross injustice and indeed to encour-
age its perpetuation and to assure its success.’’ Id.,
239–40.
Applying the bad faith exception in Habetz, this court
upheld the judgment of the trial court with respect to
a contractor’s counterclaim for unpaid sums, despite
the fact that the contract violated § 20-429 (a) by lacking
a notice of cancellation provision—a defect that the trial
court had deemed ‘‘minor.’’ (Internal quotation marks
omitted.) Id., 233–35. Although this court did not engage
in a detailed discussion of what had constituted bad
faith on the part of the homeowner,9 it observed that
the homeowner did not pay for numerous requested
extras memorialized in change orders during the con-
struction of an addition to his home, along with a por-
tion of the balance remaining on the original contract,
and that the homeowner had refused ‘‘repeated
requests’’ by the contractor to sign the change orders
with respect to the extras. Id., 233–34.
Rather than confine the bad faith exception to a
limited array of homeowner conduct involving the
knowing acceptance of services under a noncompliant
agreement, I believe that case law from this court and
the Appellate Court suggests that, consistent with its
equitable and fact dependent nature, the bad faith
exception is applicable to a wide variety of homeowner
misconduct. First, in Habetz itself, the court suggested
that the bad faith exception may have broad applicabil-
ity. See id., 236 n.10 (interpreting Barrett Builders dic-
tum ‘‘to mean that a homeowner cannot in bad faith
invoke the contractor’s statutory violation as a basis
for his own repudiation of the contract,’’ but leaving
‘‘for another day’’ question of ‘‘[w]hether proof of bad
faith in some other manner on the part of the home-
owner will also allow a contractor who has failed to
comply with the requirements of the act to recover’’).
Indeed, Habetz focuses on the implied covenant of good
faith and fair dealing; id., 238; which extends through
the life of the contract. See Geysen v. Securitas Security
Services USA, Inc., 322 Conn. 385, 405–406, 142 A.3d
227 (2016). Consistent with the covenant, Habetz also
focuses on the inequity of the homeowner’s receipt
of services without payment once the contractor has
completed its ‘‘end of the bargain’’—also an event that
naturally extends beyond formation or acceptance.
Habetz v. Condon, supra, 224 Conn. 240; see also Rizzo
Pool Co. v. Del Grosso, 232 Conn. 666, 681–82 and n.24,
657 A.2d 1087 (1995) (because bad faith exception only
permits restitution, contractor who had not yet begun
construction could not recover liquidated damages,
even if homeowner acted in bad faith to repudiate defec-
tive contract). Thus, I agree with the Appellate Court’s
conclusion in the present case that a homeowner might
well have ‘‘invoked the act in bad faith if he did so
to cover up and achieve the illicit objectives of other
dishonest dealings between himself and the contractor,
regardless of whether he knew of the act and its require-
ments at the time of those other dishonest dealings, or
intended at the outset of those dealings to invoke the
act to achieve his dishonest purpose.’’ Burns v. Adler,
supra, 158 Conn. App. 799.
I disagree with the defendant’s position that Wadia
Enterprises, Inc. v. Hirschfeld, supra, 224 Conn. 240,
a companion case to Habetz, stands for the proposition
that the bad faith exception is only applicable when
the homeowner accepts services with knowledge of an
‘‘escape hatch’’ under the act. Consistent with the fact
sensitive nature of the bad faith inquiry, I would confine
Wadia Enterprises, Inc., to the facts and claims before
the court in that case, which held that a contractor’s
claim of bad faith could not survive summary judgment,
despite the fact that the underlying defective contract
was prepared by the homeowners’ New York based
attorney and architect, and the homeowners: (1) had
certified payments while retaining 5 percent and
refused to make the final payment in reliance on the
terms of the contract that they sought to repudiate;
(2) forced the contractor to ‘‘extend credit for change
orders under provisions of the contract they [sought]
to repudiate’’; and (3) acted to ‘‘[enforce] the delay
damages clause and alleged breach of specific parts of
the very contract they [sought] to repudiate.’’ Id., 248.
This court held that ‘‘[n]one of these facts . . . indi-
cates a dishonest purpose’’ sufficient to justify invoca-
tion of the bad faith exception, observing that the ‘‘fact
that the [homeowners] had their architect and New
York attorneys draft the contract does not in and of
itself indicate bad faith on the part of the defendants.
There is no allegation or proof that the attorneys inten-
tionally omitted this requirement in order to have an
escape hatch. At most, the New York attorneys were
negligent in failing to consult Connecticut law and to
include the required clause in the contract. An honest
mistake does not rise to the level of bad faith.’’ Id.,
248–49. The court held that summary judgment was
appropriate because these facts were not sufficient to
sustain the necessary findings with respect to ‘‘motive,
intent and good faith . . . .’’ Id., 250.
Our Appellate Court has followed Wadia Enter-
prises, Inc., in rejecting claims of bad faith in cases
wherein—at least in my view—the homeowners or their
agents engaged in conduct that should place them
beyond the protections of the act—at least by estop-
pel—such as actively participating in the drafting of the
defective contract. See Lucien v. McCormick Construc-
tion, LLC, 122 Conn. App. 295, 302–303, 998 A.2d 250
(2010) (reversing finding of bad faith, despite ‘‘eleventh
hour’’ invocation of act to avoid contract, which home-
owner did not sign prior to work starting, because there
was no evidence that homeowner knew of violations
or that her attorney ‘‘purposely drafted the contract in
violation of the act in order to later avoid her obligation
to pay’’); id., 302 n.5 (noting that homeowner’s attorney
was based out of New York and would be charged with
knowledge of act if admitted in Connecticut); MacMil-
lan v. Higgins, supra, 76 Conn. App. 272 (‘‘the fact that
the [homeowners], through their agent, [a Connecticut
attorney], drafted the contract does not mandate a find-
ing of bad faith’’); see also Dinnis v. Roberts, 35 Conn.
App. 253, 256, 259, 644 A.2d 971 (recognizing footnote
in Habetz, but declining to extend bad faith exception in
upholding summary judgment for homeowners, despite
contractor’s claim that they acted in bad faith by termi-
nating relationship when work was 85 percent com-
plete, hiring engineer to inspect work without providing
notice or expressing dissatisfaction, and using harass-
ing litigation tactics), cert. denied, 231 Conn. 924, 648
A.2d 162 (1994).
I believe that Wadia Enterprises, Inc., was wrongly
decided, even beyond its apparent suggestion that the
homeowner or their representative must harbor intent
to draft a defective contract as an escape hatch in order
for the bad faith exception to apply. Wadia Enterprises,
Inc., is inconsistent with both the bad faith exception
and the purpose of the act, which is to protect consum-
ers from unscrupulous contractors employing high
pressure sales tactics and performing substandard
work. Habetz v. Condon, supra, 224 Conn. 239. Thus,
I hardly see how it is ‘‘responsive to demands of justice
and good conscience’’; id., 238; to allow a homeowner
to repudiate a contract drafted by the homeowner, or
especially the homeowner’s professional representative
such as an attorney or architect, based on technical
defects in the contract. Allowing act based repudiation
in such a case strikes me as just the kind of ‘‘inequitable
reliance on statutes’’ contemplated by the bad faith
exception. Id. Given the ‘‘strong’’ estoppel basis of the
bad faith doctrine; id., 240; allowing a repudiation of a
defective contract drafted by a homeowner’s attorney
or architect does nothing to further the legislative judg-
ment to ‘‘impose the burden of compliance with the
statute on the professional, the contractor, rather than
on the nonprofessional, the consumer.’’ Barrett Build-
ers v. Miller, supra, 215 Conn. 326; see also Wright
Bros. Builders, Inc. v. Dowling, 247 Conn. 218, 231,
720 A.2d 235 (1998) (‘‘The [act] is a remedial statute
that was enacted for the purpose of providing the public
with a form of consumer protection against unscrupu-
lous home improvement contractors. . . . The aim of
the statute is to promote understanding on the part of
consumers with respect to the terms of home improve-
ment contracts and their right to cancel such contracts
so as to allow them to make informed decisions when
purchasing home improvement services.’’ [Citation
omitted.]).
I emphasize however, that even if I did not conclude
that this court should overrule Wadia Enterprises, Inc.,
because it was wrongly decided, I nevertheless do not
read it as requiring intent at formation or acceptance
to use the defective contract as an escape hatch to
establish bad faith in all cases. Instead, I believe that
Wadia Enterprises, Inc., held only that the contractor
failed to adduce sufficient evidence to prove that spe-
cific theory of bad faith in that particular case. To hold
otherwise would be to read Wadia Enterprises, Inc.,
as overruling—without saying so—the broader and
equitable conception of bad faith articulated in its com-
panion case, Habetz, which expressly left to ‘‘another
day’’ other iterations of bad faith. Habetz v. Condon,
supra, 224 Conn. 236 n.10. Rather, I believe that the
intensely fact sensitive bad faith exception may encom-
pass a broad variety of unscrupulous homeowner con-
duct. I find instructive Walpole Woodworkers, Inc. v.
Manning, 126 Conn. App. 94, 101–102, 11 A.3d 165
(2011), aff’d, 307 Conn. 582, 57 A.3d 730 (2012), in which
the Appellate Court upheld a finding of bad faith in a
dispute arising from the construction of a fence in a
case having nothing to do with the formation of the
contract. The court held that an arbitrary refusal by the
homeowner to pay was enough to support a finding
of bad faith, given the fact finder’s rejection of the
homeowner’s claim that the contractor’s workmanship
was defective. Id., 99–100. The Appellate Court
observed specifically that, after the construction of a
fence was ‘‘substantially completed,’’ the homeowner
had ‘‘delayed payment of the balance due [for more
than six months] and, when pressed, revealed the exis-
tence of his small dog and his newly voiced concern
about its escape. The defendant delayed the plaintiff’s
installation of a free fix for another six months because
the parties could not agree on a date for the fix to be
installed and could not agree that the balance would
be paid upon completion. After the fix was installed,
the defendant continued to refuse to pay the balance
due, even though his only real concern about the work
was addressed by the fix. Moreover, he testified at trial
that the fence work was completed; he simply decided
he would not pay the balance due on the contract.’’
Id., 101–102.
The Appellate Court’s decision in Kronberg Bros.,
Inc. v. Steele, 72 Conn. App. 53, 804 A.2d 239, cert.
denied, 262 Conn. 912, 810 A.2d 277 (2002), similarly
suggests that the bad faith inquiry is not limited to
events surrounding the formation of the contract.
Although the Appellate Court disagreed with the con-
tractor’s claim that the trial court had ‘‘improperly
rejected its claim of bad faith by the [homeowners] on
the basis of its finding that none of the acts alleged was
committed prior to the execution of the contract’’; id.,
62; the court emphasized that, even with no evidence
that the homeowners had contributed to the defect in
the contract, the trial court had ‘‘clearly considered the
[homeowners’] acts before and after the execution of
the contract when it rejected the [contractor’s] bad faith
claim,’’ in concluding that the homeowners’ actions
alleged to constitute bad faith ‘‘arose out of the deterio-
rating relationship between the parties and can hardly
be held to be actions in bad faith when the [homeown-
ers] were confronted with what must have been an
exasperating ordeal. The [contractor] overlooks the evi-
dence in this trial, which hardly depicts a neat, orderly
and efficient project proceeding on time and without
delay.’’ (Emphasis added; internal quotation marks
omitted.) Id., 63.
Accordingly, I conclude that the Appellate Court
properly determined that the bad faith exception is not
limited to claims that the homeowner accepted services
from the contractor intending to rely on a known defect
in the contract to avoid payment.10 See Burns v. Adler,
supra, 158 Conn. App. 801. I agree with the Appellate
Court that ‘‘[a]ny invocation of the act to avoid a con-
tractual obligation to the contractor for a dishonest or
sinister purpose can serve as a proper basis for seeking
restitution under the bad faith exception, and thereby
preventing an injustice.’’ (Emphasis added.) Id.
B
Relying heavily on evidence of the plaintiff’s disorga-
nized bookkeeping practices as part and parcel of his
failure to comply with the act’s documentation require-
ments, the majority further concludes that the defen-
dant’s conduct after he made a final payment on August
4, 2008, was not in bad faith because the trial court
‘‘made no finding, and the plaintiff has cited no evidence
that would support a finding, that the defendant knew
or should have known that the plaintiff’s calculations
of the amounts owed to him were correct, or even close
to correct.’’ The majority posits that ‘‘it is implicit in
the trial court’s factual findings that the plaintiff’s non-
compliance with the act gave rise to a genuine, good
faith disagreement between the parties as to whether
the defendant owed the plaintiff the amounts that the
plaintiff claimed. Moreover, even if there were no genu-
ine dispute about the value of the goods and services
that the plaintiff actually provided, the plaintiff’s failure
to comply with the act deprived the defendant of the
opportunity to make an informed decision as to whether
he should continue to accept goods and services from
the plaintiff during the course of the renovation project
. . . .’’ The majority further emphasizes that the trial
court ‘‘made no factual findings as to what items of
work the plaintiff performed after [August 4, 2008], nor
did it make any findings as to when the plaintiff billed
the defendant for those items of work, and the plaintiff
has cited no evidence that could provide the basis for
such findings. Thus, there is simply no way of knowing
whether the defendant believed in good faith that he
already had paid the plaintiff for the small amount of
work that the plaintiff performed after August 4, 2008,
and it clearly would not be in bad faith for the defendant
to allow the plaintiff to finish work for which the defen-
dant believed that he had already paid.’’ (Footnote omit-
ted.) I respectfully disagree with these conclusions
because I believe that the majority’s reliance on certain
‘‘implicit’’ findings represents an intrusion into the trial
court’s explicit factual findings.
I begin by noting that the majority’s recitation of the
governing principles is generally consistent with this
court’s statement of the law in Wadia Enterprises, Inc.
v. Hirschfeld, supra, 224 Conn. 249—with which I agree
in the abstract—that the homeowners’ act of ‘‘initially
enforcing the contract and subsequently asserting the
contract’s invalidity as a defense to a suit by the contrac-
tor . . . does not, by itself, present a claim of bad faith.
There is nothing dishonest or sinister about homeown-
ers proceeding on the assumption that there is a valid
contract, enforcing its provisions, and later, in defense
to a suit by the contractor, upon learning that the con-
tract is invalid, then exercising their right to repudiate
it.’’ Indeed, I wholly agree with the majority’s statement
that the bad faith exception does not apply when the
homeowner ‘‘repudiates the contract because the con-
tractor’s noncompliance with the act gave rise to a
genuine, good faith dispute about the scope of the work
or the contract price.’’ See Taylor v. King, 121 Conn.
App. 105, 125–27, 994 A.2d 330 (2010) (upholding trial
court’s rejection of contractor’s bad faith claim because
there was no evidence that contractor repeatedly and
unsuccessfully asked homeowner to sign contract,
there were multiple violations of § 20-429 [a] beyond
lack of signed contract, and ‘‘the evidence in this case
does not indicate that the plaintiff merely was seeking
to avoid paying for the defendant’s work but, rather,
that the defendant’s work was substandard and reduced
the anticipated value of the house by approximately
$100,000’’); New England Custom Concrete, LLC v. Car-
bone, 102 Conn. App. 652, 661, 927 A.2d 333 (2007)
(noting that trial court made no finding of fact with
respect to contractor’s bad faith claim and calling it
‘‘doubtful’’ that finding could be sustained when ‘‘[a]t
best, the record demonstrates vigorous disagreement
about the quality of the plaintiff’s workmanship in per-
forming the contract’’).
This statement of the law does not, however, alter the
fundamentally factual nature of the bad faith inquiry;
Renaissance Management Co. v. Connecticut Housing
Finance Authority, supra, 281 Conn. 240; and the defer-
ence that the appellate courts owe the finder of fact
under the applicable clearly erroneous standard of
review, even when we disagree with the finding. See
MacMillan v. Higgins, supra, 76 Conn. App. 271–72
(deferring to attorney trial referee’s finding that home-
owners had not acted in bad faith, despite fact that
they presented contractor with new contract one month
after work had started, and that contract had been
drafted by homeowner’s attorney who was familiar with
act, because referee could have credited attorney’s tes-
timony that original defective contract was merely
draft). The ‘‘question before this court is not whether,
if faced with the same set of facts, we would reach the
same finding as did the [fact finder], but whether [his]
finding of an absence of bad faith was clearly errone-
ous.’’ Id., 271.
Turning to the facts in the present case, I agree with
the Appellate Court’s appropriately deferential treat-
ment of the inferences drawn by the trial court in its
rejection of the defendant’s claim that ‘‘the alleged bad
faith in this case involved nothing more than a home-
owner’s refusal to pay disputed charges arising from a
contract dispute . . . .’’ Burns v. Adler, supra, 158
Conn. App. 803. In particular, the trial court ‘‘found,
and the record confirms, that the renovation project on
the defendant’s home was largely completed by the
time the defendant decided that he had paid the plaintiff
enough for the work done on his home and refused to
pay the plaintiff any more. The [trial] court found that
the defendant’s refusal to pay the plaintiff was moti-
vated by the fact that the defendant had already
received the bulk of the benefits he expected from his
relationship with the plaintiff, and thus that there was
little risk to him if he refused to pay. The [trial] court
found that although the defendant had agreed to a time
and materials contract,11 he unilaterally and arbitrarily
selected a price that he was willing to pay for the project
without a sound factual basis. He then employed a car-
rot and stick approach to entice the plaintiff to continue
to do work on the project, suggesting that he might be
convinced to pay the plaintiff more, even though he
never actually intended to do so. The [trial] court found
that the defendant’s conduct in asking the plaintiff to
continue working on the project, knowing that he would
not be paying the plaintiff for that work, constituted
. . . neglect and/or a refusal to fulfill [his] contractual
obligations to the plaintiff. The [trial] court concluded,
based upon its observation of the conduct, demeanor
and attitude of the witnesses—all factors that trial
courts are particularly well-suited to assess—that [the
defendant’s] decision to make no further payments after
August 4, 2008, was not prompted by an honest mistake
as to his rights or duties. . . . [Rather], this decision
was the product of [the defendant’s] desire to use the
plaintiff to finish the project at no further expense to
[the defendant, which] was faster, more efficient and
vastly more economical than concluding the relation-
ship with the plaintiff and retaining a new contractor.
Thus, it was a course of conduct that was the product
of [himself] choosing to serve his own financial interests
at the plaintiff’s expense. The [trial] court concluded
that the defendant’s inducement of the plaintiff to con-
tinue working on his home on the pretense that he
might pay him more, all the while not intending to do
so, and his subsequent invocation of the act was made
in bad faith.’’ (Footnote added; internal quotation marks
omitted.) Id., 804–805. Of particular import in my view
is the trial court’s factual finding that the defendant
knew that the plaintiff’s business was in grave peril
because of unpaid subcontractors and suppliers in Sep-
tember, 2008, when he had expressed his intention not
to make further payments, while exhorting the plaintiff
to finish the punch list. I also find significant that the
trial court rejected, as a factual matter, the defendant’s
claim that the ‘‘charges beyond the amount he chose
to pay were unwarranted,’’ given the defendant’s
expressed need for speed in completion, and the flurry
of parties giving the plaintiff orders and incurring costs
at the defendant’s disinterested behest throughout
the project.12
I agree with the Appellate Court that the trial court
reasonably could have inferred that the defendant’s con-
duct constituted bad faith, insofar as it was a ‘‘self-
serving attempt by the homeowner to receive the bene-
fit of a bargain for which he had freely contracted with-
out fulfilling his own duty to pay for that benefit. He
tried to avoid his obligation by hiding behind the protec-
tion of the act, which was not established for that pur-
pose. The bad faith exception to the act has been
recognized and enforced to discourage this very con-
duct.’’ Burns v. Adler, supra, 158 Conn. App. 805. The
majority’s contrary reading of the factual record would
have been logical and reasonable in the first instance
if the majority had been tasked to serve as the fact
finder. My view, however, is that the interpretation of
the facts by the fact finder in this case does not lack
‘‘evidence in the record to support it,’’ and I am not
‘‘left with the definite and firm conviction that a mistake
has been committed.’’ (Internal quotation marks omit-
ted.) Naples v. Keystone Building & Development
Corp., 295 Conn. 214, 225, 990 A.2d 326 (2010). I, there-
fore, agree with the Appellate Court that a conclusion
to the contrary would be an impermissible substitution
of our judgment for that of the trial court. Burns v.
Adler, supra, 158 Conn. App. 805.
II
I next address the plaintiff’s certified appeal from
the judgment of the Appellate Court affirming the trial
court’s denial of his motion for attorney’s fees upon
the foreclosure of a mechanic’s lien pursuant to § 52-
249 (a). See id., 808; see footnote 4 of this dissenting
opinion. The Appellate Court’s opinion aptly sets forth
the following additional relevant facts and procedural
history. ‘‘[P]rior to the commencement of trial in this
action, the parties agreed that trial on the first count
of the plaintiff’s complaint, the count seeking foreclo-
sure of his mechanic’s lien on the defendant’s property,
would be bifurcated from the trial on his breach of
contract and unjust enrichment counts.13 The court
acquiesced and the case proceeded accordingly. After
the court issued its memorandum of decision ruling in
favor of the plaintiff under the bad faith exception to
the act, the plaintiff moved for a supplemental judgment
seeking foreclosure of the mechanic’s lien. The parties
thereafter stipulated that there would not be a hearing
on the terms of the judgment of foreclosure of the
mechanic’s lien.14 Accordingly, the stipulation was sub-
mitted to, and approved by, the court without a hearing.
The trial court concluded, based upon the plain lan-
guage of § 52-249 (a), that the condition precedent to
the awarding of attorney’s fees, namely, a hearing, had
not been satisfied. The court thus denied the plaintiff’s
request for attorney’s fees.’’ (Footnotes added.) Burns
v. Adler, supra, 158 Conn. App. 807–808. The Appellate
Court agreed with the trial court’s analysis. Id., 808.
On appeal, the plaintiff contends that the Appellate
Court improperly concluded that the ‘‘hearing’’ requisite
to the award of attorney’s fees had not occurred
because the terms of the foreclosure were determined
by stipulation and in-chambers conferences, rather than
in a hearing. The plaintiff argues that this approach is
unworkable because it elevates ‘‘form over substance’’
by requiring the court to convene on the record for a
very brief hearing. To this end, the plaintiff relies on
A. Secondino & Son, Inc. v. LoRicco, 19 Conn. App. 8,
15–16, 561 A.2d 142 (1989), for the proposition that
attorney’s fees are allowed under § 52-249 (a) in foreclo-
sure ‘‘actions,’’ rather than just ‘‘hearings.’’ He also con-
tends that the requisite hearing commenced with trial
on all other counts of the complaint, which served to
establish the debt that formed the basis for the foreclo-
sure judgment, given case law such as Clem Martone
Construction, LLC v. DePino, 145 Conn. App. 316, 331–
32, 77 A.3d 760, cert. denied, 310 Conn. 947, 80 A.3d
906 (2013), which suggests that attorney’s fees under
§ 52-249 (a) may include fees for the underlying trial
to establish the debt.
In response, the defendant emphasizes that the pro-
ceedings in this case were bifurcated between the fore-
closure and underlying unjust enrichment and breach
of contract counts, and that the parties’ subsequent
stipulation resolving the plaintiff’s motion for a supple-
mental judgment obviated the need for a hearing on
the foreclosure remedy. Thus, the defendant contends
that the plaintiff’s ‘‘form over substance’’ arguments
ask this court to rewrite the plain and unambiguous
language of § 52-249 (a), which calls for a specific type
of hearing as a prerequisite to an award of attorney’s
fees, namely, one to determine the form of the foreclo-
sure judgment and the defendant’s right of redemption;
he posits that requiring the plaintiff to pay his own
attorney’s fees in the absence of such a hearing is con-
sistent with the common-law American rule under
which parties pay their own attorney’s fees absent a
statutory or contractual exception. See, e.g., ACMAT
Corp. v. Greater New York Mutual Ins. Co., 282 Conn.
576, 582, 923 A.2d 697 (2007). To this end, the defendant
further contends that the stipulation did not have the
formalities associated with a hearing. I agree with the
defendant, and conclude that the requisite hearing did
not occur in this case to permit an award of attorney’s
fees pursuant to § 52-249 (a).
Whether § 52-249 (a) permits an award of attorney’s
fees when the foreclosure judgment is the product of
a stipulation rather than an on-the-record hearing ‘‘pre-
sents a question of statutory construction over which
we exercise plenary review. . . . When construing a
statute, [o]ur fundamental objective 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, extratex-
tual evidence of the meaning of the statute shall not
be considered. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter . . . . The test to determine ambiguity
is whether the statute, when read in context, is suscepti-
ble to more than one reasonable interpretation.’’ (Cita-
tion omitted; footnote omitted; internal quotation marks
omitted.) Tomick v. United Parcel Service, Inc., 324
Conn. 470, 477–78, A.3d (2016).
I am mindful that, ‘‘[i]n determining whether . . . a
statute abrogates or modifies a common law rule the
construction must be strict, and the operation of a stat-
ute in derogation of the common law is to be limited
to matters clearly brought within its scope. . . . Thus,
[n]o statute is to be construed as altering the common
law, farther than its words import [and a statute] is not
to be construed as making any innovation upon the
common law which it does not fairly express. . . . We
recognize only those alterations of the common law
that are clearly expressed in the language of the statute
because the traditional principles of justice upon which
the common law is founded should be perpetuated.’’
(Citations omitted; internal quotation marks omitted.)
Ames v. Commissioner of Motor Vehicles, 267 Conn.
524, 532, 839 A.2d 1250 (2004). It is well settled that
this rule of strict construction applies to statutes such
as § 52-249 (a) allowing for awards of attorney’s fees
because such statutes operate in derogation of the ‘‘gen-
eral rule of law known as the American rule,’’ under
which ‘‘attorney’s fees and ordinary expenses and bur-
dens of litigation are not allowed to the successful party
absent a contractual or statutory exception.’’ (Internal
quotation marks omitted.) ACMAT Corp. v. Greater
New York Mutual Ins. Co., supra, 282 Conn. 582; see
also, e.g., Perry v. Perry, 312 Conn. 600, 625, 95 A.3d
500 (2014); Fennelly v. Norton, 294 Conn. 484, 504 n.17,
985 A.2d 1026 (2010); Ames v. Commissioner of Motor
Vehicles, supra, 532–33; Stratford v. Castater, 136 Conn.
App. 535, 544–45, 46 A.3d 953 (2012).
As required by § 1-2z, I begin with the text of the
statute. Section 52-249 (a) provides in relevant part:
‘‘The plaintiff in any action of foreclosure of a mortgage
or lien, upon obtaining judgment of foreclosure, when
there has been a hearing as to the form of judgment
or the limitation of time for redemption, shall be
allowed the same costs, including a reasonable attor-
ney’s fee, as if there had been a hearing on an issue of
fact. . . .’’ (Emphasis added.) Given the strict construc-
tion that we must afford § 52-249 (a), I conclude that
the Appellate Court properly upheld the trial court’s
denial of the plaintiff’s request for attorney’s fees
because no hearing on the foreclosure remedy took
place in the present case. Specifically, the parties stipu-
lated during trial that the foreclosure and merits pro-
ceedings in the present case were to be bifurcated, and
the conduct of the proceedings reflects this stipulation.
Once the plaintiff had prevailed at the court trial, the
foreclosure remedy was the product of a second stipula-
tion resolving the plaintiff’s motion for a supplemental
judgment, rather than a judicial decision following an in-
court proceeding.15 This stipulated judgment procedure
was inconsistent with the very specific language that
the legislature used in drafting § 52-249 (a), which
requires ‘‘a hearing as to the form of judgment or the
limitation of time for redemption . . . .’’16 Allowing the
stipulation to substitute for the required hearing,17 as
urged by the plaintiff, would run afoul of the maxim
that ‘‘a court must construe a statute as written. . . .
Courts may not by construction supply omissions . . .
or add exceptions merely because it appears that good
reasons exist for adding them. . . . The intent of the
legislature, as this court has repeatedly observed, is to
be found not in what the legislature meant to say, but
in the meaning of what it did say. . . . It is axiomatic
that the court itself cannot rewrite a statute to accom-
plish a particular result. That is the function of the
legislature.’’18 (Internal quotation marks omitted.) Mar-
ciano v. Jimenez, 324 Conn. 70, 77, 151 A.3d 1280 (2016).
I disagree with the plaintiff’s argument that this inter-
pretation of § 52-249 (a) leads to an unworkable result in
contravention of § 1-2z because a defendant can avoid
liability for attorney’s fees by simply paying the debt
at the conclusion of the trial, rather than appealing it,
thus obviating the need for a hearing to set the terms
of the foreclosure judgment because the underlying
debt would have been paid. The plaintiff argues that
the ‘‘only way to avoid such an unjust result is to con-
clude that when trial commenced on all counts of the
complaint, including establishing the debt which . . .
was essential for the mechanic’s lien foreclosure action,
that the hearing mandated by . . . § 52-249 (a) com-
menced at that time.’’ In my view, providing a judgment
debtor with incentive to satisfy a debt immediately,
rather than take an appeal or incur a judgment of fore-
closure that would bring into play an attorney’s fee
award under § 52-249 (a), is not an unworkable result
because it promotes the speedy resolution of disputes
following the court’s determination of the debt.19 I,
therefore, conclude that the Appellate Court properly
upheld the trial court’s denial of the plaintiff’s request
for attorney’s fees.20 Burns v. Adler, supra, 158 Conn.
App. 808.
Because I would affirm the judgment of the Appellate
Court, I respectfully dissent.
1
I note that Amie R. Weitzman and the Salisbury Bank and Trust Company
were also named as defendants in the present case. See footnote 1 of the
majority opinion. In the interest of simplicity, I refer to Adler as the defendant
in this opinion.
2
General Statutes (Rev. to 2007) § 20-429 provides in relevant part: ‘‘(a)
No home improvement contract shall be valid or enforceable against an
owner unless it: (1) Is in writing, (2) is signed by the owner and the contrac-
tor, (3) contains the entire agreement between the owner and the contractor,
(4) contains the date of the transaction, (5) contains the name and address
of the contractor and the contractor’s registration number, (6) contains a
notice of the owner’s cancellation rights in accordance with the provisions
of chapter 740, (7) contains a starting date and completion date, and (8) is
entered into by a registered salesman or registered contractor. Each change
in the terms and conditions of a contract shall be in writing and shall be
signed by the owner and contractor, except that the [Commissioner of
Consumer Protection] may, by regulation, dispense with the necessity for
complying with the requirement that each change in a home improvement
contract shall be in writing and signed by the owner and contractor. . . .
‘‘(f) Nothing in this section shall preclude a contractor who has complied
with subdivisions (1), (2), (6), (7) and (8) of subsection (a) of this section
from the recovery of payment for work performed based on the reasonable
value of services which were requested by the owner, provided the court
determines that it would be inequitable to deny such recovery.’’
I note that § 20-429 was amended subsequent to the events underlying
the present case. See, e.g., Public Acts 2009, No. 09-18, § 2; see also footnote
2 of the majority opinion. All references to § 20-429 in this opinion are to
the 2007 revision of the statute.
3
I agree with part I of the majority opinion, which declines to reach, on
preservation grounds, the defendant’s claim that the 1993 enactment of § 20-
429 (f) abrogated the judicially created bad faith exception.
4
In contrast to the majority; see footnote 7 of the majority opinion; my
resolution of the first certified appeal renders it necessary for me to reach
the merits of the second certified appeal, which is limited to the following
question: ‘‘Did the Appellate Court correctly affirm the judgment of the trial
court denying the plaintiff’s request for attorney’s fees pursuant to General
Statutes § 52-249 (a)?’’ Burns v. Adler, 319 Conn. 931, 932, 125 A.3d 206
(2015).
5
General Statutes § 52-249 (a) provides: ‘‘The plaintiff in any action of
foreclosure of a mortgage or lien, upon obtaining judgment of foreclosure,
when there has been a hearing as to the form of judgment or the limitation of
time for redemption, shall be allowed the same costs, including a reasonable
attorney’s fee, as if there had been a hearing on an issue of fact. The same
costs and fees shall be recoverable as part of the judgment in any action
upon a bond which has been substituted for a mechanic’s lien.’’
6
I believe that the majority improperly characterizes the entirety of the
defendant’s claim in the first certified appeal as presenting a mixed question
of fact and law subject to plenary review because it calls for us to consider
whether the facts, which are undisputed for the purposes of the first certified
appeal, ‘‘meet the legal standard of bad faith . . . .’’ In my view, this state-
ment of the standard of review is overbroad insofar as a finding of bad
faith often depends on those inferences reasonably drawn from otherwise
undisputed historical facts with respect to matters such as an actor’s motives
and intent. See, e.g., Wadia Enterprises, Inc. v. Hirschfeld, supra, 224 Conn.
250. Put differently, to the extent that the trial court utilized the proper
definition of the bad faith exception, I would adhere to existing precedent
that would review the trial court’s application of that doctrine under the
clearly erroneous standard. See, e.g., Walpole Woodworkers, Inc. v. Manning,
126 Conn. App. 94, 99–102, 11 A.3d 165 (2011), aff’d, 307 Conn. 582, 57 A.3d
730 (2012); MacMillan v. Higgins, supra, 76 Conn. App. 271–73.
7
The bad faith exception had its genesis in dictum in Barrett Builders
v. Miller, supra, 215 Conn. 328–29, and its companion cases, A. Secondino &
Son, Inc. v. LoRicco, 215 Conn. 336, 340, 576 A.2d 464 (1990), Liljedahl
Bros., Inc. v. Grigsby, 215 Conn. 345, 350, 576 A.2d 149 (1990), and Sidney
v. DeVries, 215 Conn. 350, 354, 575 A.2d 228 (1990) (per curiam).
8
The court utilized ‘‘the standard definition of bad faith,’’ which ‘‘in general
implies both ‘actual or constructive fraud, or a design to mislead or deceive
another, or a neglect or refusal to fulfill some duty or some contractual
obligation, not prompted by an honest mistake as to one’s rights or duties,
but by some interested or sinister motive.’ Black’s Law Dictionary (5th Ed.
1979). Bad faith means more than mere negligence; it involves a dishonest
purpose.’’ Habetz v. Condon, supra, 224 Conn. 236–37.
9
It appears that this court did not engage in a detailed discussion of the
facts giving rise to the bad faith finding in Habetz because ‘‘any claims
regarding the trial court’s finding of bad faith on the part of the homeowner
have been waived.’’ Habetz v. Condon, supra, 224 Conn. 237 n.11.
10
Given my conclusion that the bad faith exception is not limited to claims
arising from formation or acceptance by the homeowner with knowledge
of the defect, I similarly disagree with the defendant’s corollary argument
that the bad faith exception carries with it an element of loss causation.
The loss that the bad faith exception seeks to remedy is caused by operation
of the act’s statutory preclusion on even quantum meruit recovery in cases
of defective home improvement contracts. See Habetz v. Condon, supra,
224 Conn. 239. In my view, the court looks at the totality of the circumstances
to determine whether the homeowner’s hands are clean in invoking the
substantial protections of the act, as compared to the more limited inquiry,
urged by the defendant, of whether the homeowner actively used the act
as a sword in an independently tortious scheme to defraud the contractor.
See id., 239–40 (noting that bad faith exception is judicial creation doctrinally
distinct from act, and embodies ‘‘the general principle . . . that an individ-
ual should not profit from his own deceptive and unscrupulous conduct’’).
11
The trial court found specifically that the parties had entered into a
time and materials contract, under which ‘‘the defendants would be charged
$45 per hour for work done by the plaintiff and any crew members working
under him,’’ and that ‘‘the defendants would be responsible for any additional
expenses on the project, including dumpsters and materials needed for the
project.’’ The trial court then found that the ‘‘plaintiff presented credible
evidence, which the court does credit, indicating that the value of the plain-
tiff’s work on the project, the value of the work of the crew members and
subcontractors who worked under his supervision, and the cost of materials
and associated expenses exceeds, not only the $985,000 paid by the defen-
dants, but also the $214,039 in damages claimed in the complaint.’’ The
trial court reasonably could have credited the plaintiff’s testimony that the
constantly shifting nature of the project, with no final set of plans furnished
to him by the defendant or his architect, rendered it impossible to create a
fixed price contract. This also was consistent with the defendant’s expressed
demand for speed in completing the project.
12
I disagree in particular with the majority’s conclusion that, ‘‘even if
there were no genuine dispute about the value of the goods and services
that the plaintiff actually provided, the plaintiff’s failure to comply with the
act deprived the defendant of the opportunity to make an informed decision
as to whether he should continue to accept goods and services from the
plaintiff during the course of the renovation project . . . .’’ First, the trial
court never made a finding to this effect. Second, beyond the trial court’s
observation of the parties’ demeanor and credibility during the proceedings,
it is reasonable to infer that the trial court considered the unique circum-
stances of this project, under which the plaintiff had been working under
extreme time pressure from the defendant to finish the job quickly, while
taking orders from numerous individuals associated with the defendant,
including his wife, her assistant, and their architect—despite ‘‘mushrooming’’
costs. In my view, this course of dealing evinced the defendant’s implied
waiver of his opportunity to make genuinely informed decisions. In my view,
the majority’s assignment of the risk of noncompliance with the act to the
plaintiff under these factual circumstances is completely incompatible with
the equitable nature of the bad faith exception.
13
Because both parties had sought attorney’s fees in their pleadings, the
trial court agreed, for reasons of judicial economy, with their recommenda-
tion to bifurcate that issue, and conduct a subsequent evidentiary hearing
only upon the court making an initial determination that a fee award is
warranted. The trial court then agreed with the parties’ joint recommenda-
tion, as stated by counsel for the plaintiff, to bifurcate the count of the
complaint seeking foreclosure of the mechanic’s lien on issues such as the
value of the property and setting law days, if there were a finding that a
debt is owed.
14
The parties stipulated that: (1) a judgment may enter foreclosing the
mechanic’s lien on the defendant’s home; (2) the debt due and payable
pursuant to the mechanic’s lien was $214,039.09, ‘‘the amount previously
found by the [trial court] to be due’’; (3) the fair market value of the defen-
dant’s improved real property subject to the lien was not less than $500,000;
(4) a judgment of strict foreclosure was appropriate, with law days to
commence on August 14, 2012; (5) the plaintiff was entitled to a title search
fee of $225, but not an appraisal fee; and (6) ‘‘[w]hether [the] plaintiff is
entitled to an award of attorney’s fees on the [foreclosure count] of the
revised complaint is subject to dispute between the parties . . . .’’
With respect to the attorney’s fees issue relative to the foreclosure count,
the parties ‘‘agreed, subject to the court’s approval, to submit . . . simulta-
neous briefs on this issue . . . .’’ The parties then stipulated that ‘‘the
plaintiff has incurred reasonable attorney’s fees in the total amount of
$98,325 for all legal work in the [above captioned] case,’’ as supported by
attached time entries, which ‘‘may be considered by the court in considering
the issue to be decided by the court pertinent to the attorney’s fees, if any,
that should be awarded on the [foreclosure count]. Although the parties
agree that the plaintiff has incurred these fees, they do not agree as to
whether he is entitled to recover fees in that amount, or any amount, as
part of the judgment on the [foreclosure count]. Both parties reserve the
right to submit briefs to the court regarding that issue, and to present oral
argument if the court requests argument . . . .’’ The parties also stipulated
that they would be available for oral argument, if desired by the court, on
the attorney’s fees issue.
The remainder of the stipulation concerned appellate issues, including
the plaintiff’s agreement not to seek to terminate the automatic appellate
stay, collect the judgment, or foreclose the mechanic’s lien while an appeal
is pending. The parties also stipulated to an annual postjudgment interest
rate of 4.5 percent.
15
I recognize that the use of a stipulated judgment procedure in lieu of
a hearing has salutary effects with respect to judicial economy, and that
the plaintiff argues that it was ‘‘tantamount’’ to a hearing under § 52-249 (a)
in the present case. Given the strict construction that we are required to
give § 52-249 (a), I do not view the stipulation as having the formality
requisite to a ‘‘hearing,’’ as that word is understood as a legal term of art.
See State v. Fernando A., 294 Conn. 1, 16–17, 981 A.2d 427 (2009) (describing
definitions of term ‘‘ ‘hearing’ ’’ in regular and legal dictionaries as encom-
passing judicial proceeding); Willimantic Car Wash, Inc. v. Zoning Board
of Appeals, 247 Conn. 732, 737–38, 724 A.2d 1108 (1999) (relying on legal
dictionary’s definition of ‘‘hearing’’ as ‘‘ ‘[a] proceeding of relative formality
. . . generally public, with definite issues of fact or of law to be tried, in
which witnesses are heard and evidence presented, and in which parties to
a dispute have a right to be heard’’ in concluding that pretrial conference
was not ‘‘hearing’’ for court approval of settlement contemplated by General
Statutes § 8-8n [footnote omitted; internal quotation marks omitted]).
16
As the plaintiff urges, I recognize that the Appellate Court broadly stated
in A. Secondino & Son, Inc. v. LoRicco, supra, 19 Conn. App. 15–16, that
‘‘§ 52-249 (a) succinctly and unambiguously provides for the allowance of
attorney’s fees in actions for foreclosure of mortgages or liens.’’ (Emphasis
added; footnote omitted.) The plaintiff, however, takes that broadly stated
language from the Appellate Court’s opinion somewhat out of context, as
that case did not involve a challenge to the procedure utilized in awarding
attorney’s fees, and did not involve a stipulation. Id., 15–16.
17
The cases on which the plaintiff relies do not support his argument
that the stipulation procedure utilized in this case satisfied the hearing
requirement under § 52-249 (a), or that we have read that requirement in
the ‘‘broadest possible terms rather than giving it the very narrow reading
utilized by the Appellate Court and the trial court in this case.’’ Although
these cases upheld fee awards that appear to have encompassed both the
foreclosure proceeding and the underlying trial, none of them concerned
the propriety of a stipulation procedure in lieu of a hearing—none even
mentioned the use of a stipulation, as all involved fee awards rendered after
a hearing on the contractor’s motion. See Intercity Development, LLC v.
Andrade, 286 Conn. 177, 181, 942 A.2d 1028 (2008) (bifurcated proceeding,
with foreclosure judgment product of motion); Clem Martone Construction,
LLC v. DePino, supra, 145 Conn. App. 331–32 (trial court improperly
excluded legal work on homeowner’s counterclaim in calculating fees for
foreclosure claim); Gagne v. Vaccaro, 118 Conn. App. 367, 370–71, 984
A.2d 1084 (2009) (appellate attorney’s fees permissible under § 52-249 [a]);
Original Grasso Construction Co. v. Shepherd, 70 Conn. App. 404, 418–19,
799 A.2d 1083 (concluding that contractor did not waive claim for attorney’s
fees under § 52-249 [a] by failing to present evidence before attorney trial
referee because that was question of law for court, and remanding case for
hearing on motion for fees), cert. denied, 261 Conn. 932, 806 A.2d 1065 (2002).
18
As the defendant points out, when the legislature has made attorney’s
fees more broadly available as a remedy in a civil action without mandating
a particular procedure, it has said so. See, e.g., General Statutes § 35-53 (b)
(providing that court ‘‘may award reasonable attorney’s fees to the prevailing
party’’ in case brought under Uniform Trade Secrets Act for wilful or mali-
cious misappropriation); General Statutes § 42-110g (d) (‘‘In any action
brought by a person under [Connecticut Unfair Trade Practices Act], the
court may award, to the plaintiff, in addition to the relief provided in this
section, costs and reasonable attorneys’ fees based on the work reasonably
performed by an attorney and not on the amount of recovery. In a class
action in which there is no monetary recovery, but other relief is granted
on behalf of a class, the court may award, to the plaintiff, in addition to
other relief provided in this section, costs and reasonable attorneys’ fees.’’).
19
As the plaintiff urges, I recognize that ‘‘[t]his court repeatedly has
eschewed applying the law in such a hypertechnical manner so as to elevate
form over substance.’’ Lostritto v. Community Action Agency of New Haven,
Inc., 269 Conn. 10, 34, 848 A.2d 418 (2004). I also recognize the public policy
that supports promoting settlement of disputes. See, e.g., Black v. Goodwin,
Loomis & Britton, Inc., 239 Conn. 144, 166, 681 A.2d 293 (1996); Tomasso
Bros., Inc. v. October Twenty-Four, Inc., 221 Conn. 194, 198, 602 A.2d 1011
(1992). Accordingly, I do not suggest that § 52-249 (a) precludes parties
from settling foreclosure cases in a manner that specifically accommodates
the hearing requirements of § 52-249 (a), or requires an extensive on-the-
record proceeding. I similarly leave to another day the type of hearing
necessary to satisfy the ‘‘specific aspects’’ of the foreclosure proceeding set
forth in the plain language of § 52-249 (a).
20
In his reply brief, the plaintiff posits that a decision by this court to
affirm the judgment of the Appellate Court will result in a remand to the
trial court for the purpose of setting new law days with respect to the
judgment of strict foreclosure of the mechanic’s lien. The plaintiff states
that the hearing contemplated by § 52-249 (a) will take place at that time,
and asks this court to determine whether he is—contrary to the conclusion
of the trial court—entitled to attorney’s fees for successfully prosecuting
the underlying action, defending this appeal, and defending against the
defendant’s counterclaims, in addition to those fees relevant only to the
foreclosure proceedings. Indeed, as the trial court noted in its memorandum
of decision, there appears to be a Superior Court split on whether the
attorney’s fees awarded pursuant to § 52-249 (a) may encompass the trial
of the underlying action, in addition to the foreclosure aspects of the proceed-
ing—at least prior to the Appellate Court’s decision in Clem Martone Con-
struction, LLC v. DePino, supra, 145 Conn. App. 331–32. Given the majority’s
reversal of the judgment in favor of the plaintiff, this issue is not likely to
arise on remand and I need not consider it further. See, e.g., Sullivan v.
Metro-North Commuter Railroad Co., 292 Conn. 150, 164 and n.8, 971 A.2d
676 (2009).