Ledyard v. WMS Gaming, Inc.

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
TOWN OF LEDYARD v. WMS GAMING, INC.
(AC 39746)
DiPentima, C. J., and Beach, Alvord, Sheldon and Prescott, Js.*
Considered December 14, 2016—officially released March 21, 2017
(Appeal from Superior Court, judicial district of New
London, Vacchelli, J.)
Lloyd L. Langhammer, in support of the motion.
Aaron S. Bayer and David R. Roth, in opposition to
the motion.
Opinion
DiPENTIMA, C. J. The motion before the court chal-
lenges our jurisdiction over the appeal of the defendant,
WMS Gaming, Inc., from the decision of the trial court
rendering summary judgment as to liability only in favor
of the plaintiff, the town of Ledyard, with respect to
certain attorney’s fees incurred by the plaintiff. The
plaintiff moves to dismiss the defendant’s appeal for
lack of subject matter jurisdiction, claiming that the
trial court’s decision is not an appealable final judgment
because the trial court has not determined the amount
of the attorney’s fees. We conclude that the trial court’s
decision rendering summary judgment as to liability
only in favor of the plaintiff with regard to the attorney’s
fees at issue is not an appealable final judgment.
Accordingly, we grant the plaintiff’s motion to dismiss
the defendant’s appeal.
The record before the court reveals the following
facts and procedural history. In 2008, the plaintiff com-
menced the underlying action to collect unpaid personal
property taxes that it had imposed on slot machines that
the defendant owned and leased to the Mashantucket
Pequot Tribal Nation (Tribal Nation) for use in its gam-
ing facilities. As relief, the plaintiff sought $18,251.23
in unpaid personal property taxes, plus costs, interest,
and penalties. In addition, the plaintiff sought attorney’s
fees pursuant to General Statutes § 12-161a.
Shortly after the plaintiff had commenced the under-
lying state action, the Tribal Nation filed an action in
the United States District Court for the District of Con-
necticut challenging the authority of the state of Con-
necticut and the plaintiff1 to impose the taxes at issue
in the present state action.2 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 consolidated
federal action. The District Court, determining that the
authority 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 sep-
arate motions for summary judgment filed by the plain-
tiff and the state, respectively. See Mashantucket
Pequot Tribe v. Ledyard, United States District Court,
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 (federal
action attorney’s fees). 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 cross
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 summary 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.3 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, prior to the trial court schedul-
ing a hearing on the plaintiff’s motion for attorney’s
fees, the defendant appealed the trial court’s decision
with respect to the federal action attorney’s fees. The
plaintiff’s motion to dismiss the defendant’s appeal
followed.
The plaintiff moves to dismiss the defendant’s appeal
for lack of subject matter jurisdiction, asserting that
the trial court’s decision rendering summary judgment
as to liability only in favor of the plaintiff with respect
to the federal action attorney’s fees is not an appealable
final judgment because the trial court has not deter-
mined the amount of the attorney’s fees to which the
plaintiff is entitled. In response, the defendant contends
that the trial court’s decision is immediately appealable
under the rationale of Hylton v. Gunter, 313 Conn. 472,
97 A.3d 970 (2014). We agree with the plaintiff.
‘‘As a preliminary matter, we set forth the standard
of review. The lack of a final judgment implicates the
subject matter jurisdiction of an appellate court to hear
an appeal. A determination regarding . . . subject mat-
ter jurisdiction is a question of law . . . [and, there-
fore] our review is plenary. . . . The right of appeal is
accorded only if the conditions fixed by statute and the
rules of court for taking and prosecuting the appeal are
met. . . . It is . . . axiomatic that, except insofar as
the legislature has specifically provided for an interlocu-
tory appeal or other form of interlocutory appellate
review . . . appellate jurisdiction is limited to final
judgments of the trial court.’’ (Citation omitted; internal
quotation marks omitted.) Id., 478.
We begin our analysis with a review of Paranteau v.
DeVita, 208 Conn. 515, 544 A.2d 634 (1988). In Paran-
teau, the plaintiff tenants sued the defendant landlord,
alleging, inter alia, a violation of the Connecticut Unfair
Trade Practices Act, General Statutes §§ 42-110a et seq.
Id., 517. The trial court rendered judgment on the merits
in favor of the plaintiffs on all counts and implicitly
awarded them attorney’s fees pursuant to General Stat-
utes § 42-110g (d), but delayed determining the amount
of the attorney’s fees. Id. Following a hearing held over
twenty days after the judgment had been rendered, the
trial court determined the sum of the attorney’s fees to
be $2580. Id. The defendant in Paranteau filed an appeal
eight days after the hearing, challenging both the judg-
ment on the merits as well as the supplemental post-
judgment attorney’s fees order. Id., 518. The plaintiffs
timely filed a motion to dismiss the appeal on the ground
that it was untimely. Id. This court granted the motion
to dismiss and dismissed the appeal in toto. Id.
After granting the defendant’s certification to appeal
in Paranteau, our Supreme Court reversed this court’s
judgment in part. Id. Our Supreme Court first deter-
mined that this court properly had dismissed, as
untimely, the portion of the appeal challenging the judg-
ment on the merits, concluding that ‘‘a judgment on the
merits is final for purposes of appeal even though the
recoverability or amount of attorney’s fees for the litiga-
tion remains to be determined.’’ Id., 523. It then deter-
mined that this court had improperly dismissed, as
untimely, the portion of the appeal challenging the trial
court’s supplemental postjudgment attorney’s fees
order, concluding that ‘‘such an order may raise a collat-
eral and independent claim that is separately appealable
as a final judgment.’’ Id. In a footnote, it further
explained: ‘‘A supplemental postjudgment award of
attorney’s fees becomes final and appealable . . . not
when there is a finding of liability for such fees, but
when the amount of fees are conclusively determined.
A finding as to liability only, prior to a determination
on the issue of damages, is not a final judgment from
which an appeal lies. . . . Furthermore, a timely
appeal from a supplemental postjudgment award of
attorney’s fees may challenge not only the amount
awarded, but the underlying recoverability of such fees
as well.’’ (Citation omitted.) Id., 524 n.11.4
This court has relied on Paranteau to dismiss
appeals, in whole or in part, challenging awards of attor-
ney’s fees where the appeals were filed prior to the
conclusive determinations of the amount of the attor-
ney’s fees. See Bailey v. Lanou, 138 Conn. App. 661,
675–77, 54 A.3d 198 (2012) (dismissing, sua sponte, por-
tion of appeal challenging award of statutory attorney’s
fees where trial court had not determined amount of
attorney’s fees prior to filing of appeal); McKeon v.
Lennon, 131 Conn. App. 585, 610–11, 27 A.3d 436 (dis-
missing portion of appeal challenging award of attor-
ney’s fees where trial court had not determined amount
of attorney’s fees prior to filing of appeal), cert. denied,
303 Conn. 901, 31 A.3d 1178 (2011);5 Sullivan v. Brown,
116 Conn. App. 660, 661 n.1, 662–63, 975 A.2d 1289
(dismissing, sua sponte, appeal challenging award of
statutory attorney’s fees and costs where trial court
had not determined amount of attorney’s fees and costs
prior to filing of appeal), cert. denied, 294 Conn. 914,
983 A.2d 852 (2009); see also Burns v. General Motors
Corp., 80 Conn. App. 146, 150–51 n.6, 833 A.2d 934
(noting, in dictum, that award of statutory attorney’s
fees was not appealable final judgment where trial court
had not determined amount of attorney’s fees prior to
filing of appeal), cert. denied, 267 Conn. 909, 840 A.2d
1170 (2003).
The defendant relies on Hylton v. Gunter, supra, 313
Conn. 472, to support its assertion that the trial court’s
decision rendering summary judgment as to liability
only in favor of the plaintiff with respect to the federal
action attorney’s fees is immediately appealable. In Hyl-
ton, the parties were equal members of a limited liability
company. Id., 475. The plaintiff sued the defendant,
raising claims, inter alia, of fraud and negligence on
the basis of allegations that the defendant had been
misappropriating the limited liability company’s funds
for his personal use. Id. The trial court rendered judg-
ment on the merits in favor of the plaintiff on all counts
and awarded him compensatory damages. Id. The trial
court also awarded the plaintiff common-law punitive
damages in the form of attorney’s fees and instructed
the plaintiff to file an affidavit of attorney’s fees within
thirty days. Id. The defendant appealed prior to the trial
court’s determination of the amount of the attorney’s
fees, and he did not amend his appeal once the trial
court had rendered a judgment establishing the amount
of the attorney’s fees. Id., 475–76.
This court placed the appeal in Hylton on its own
motion calendar for a determination of whether the
appeal should be dismissed for lack of a final judgment.
Id., 476. After the motion hearing, this court marked
the matter over. Id. The parties subsequently briefed
the final judgment issue and argued the issue as part
of the appeal. Id. This court subsequently dismissed the
appeal for lack of an appealable final judgment, relying
upon its prior decision in Lord v. Mansfield, 50 Conn.
App. 21, 717 A.2d 267, cert. denied, 247 Conn. 943, 723
A.2d 321 (1998), overruled by Hylton v. Gunter, supra,
313 Conn. 488–89. See Hylton v. Gunter, 142 Conn. App.
548, 554, 66 A.3d 517 (2013), rev’d, 313 Conn. 472, 97
A.3d 970 (2014). In Lord, this court held that a judgment
is not final for purposes of appeal where the trial court
awards common-law punitive damages without
determining the amount of the common-law punitive
damages. Lord v. Mansfield, supra, 24, 28. In reaching
that conclusion, this court determined that common-
law punitive damages, unlike attorney’s fees, serve the
purpose of compensating the injured party fully and
are not wholly separate from a judgment rendered on
the merits. Id., 26–28.
After granting the defendant’s petition for certifica-
tion to appeal, our Supreme Court reversed this court’s
judgment. Hylton v. Gunter, supra, 313 Conn. 477–78.
After analyzing Paranteau and subsequent cases,6 it
determined that the judgment rendered on the merits
was an appealable final judgment, even though the trial
court had not determined the amount of the attorney’s
fees awarded as common-law punitive damages prior
to the filing of the appeal. Id., 479–84. It concluded that
the bright line rule articulated in Paranteau, namely,
that ‘‘a judgment on the merits is final for purposes of
appeal even though the recoverability or amount of
attorney’s fees for the litigation remains to be deter-
mined’’; (internal quotation marks omitted) id., 480;
applied equally in the context of common-law punitive
damages. Id., 484. In reaching its conclusion, our
Supreme Court declined to distinguish attorney’s fees
awarded pursuant to the applicable statutes from attor-
ney’s fees awarded as common-law punitive damages,
determining that common-law punitive damages are
akin to statutory attorney’s fees ‘‘in practicality and
purpose, insofar as both provide the same relief and
serve the same function . . . namely, fully compensat-
ing injured parties.’’ (Citation omitted; footnote omit-
ted; internal quotation marks omitted.) Id., 484–86. Our
Supreme Court also emphasized that its approach ‘‘sug-
gests that what is of importance here is not preservation
of conceptual consistency in the status of a particular
fee authorization as ‘merits’ or ‘nonmerits,’ but rather
preservation of operational consistency and predict-
ability in the overall application of [the final judgment
rule].’’ Id., 487. Hylton expressly overruled this court’s
judgment in Lord. Id., 488–89.7
The defendant asserts that, under the rationale of
Hylton, the trial court’s decision rendering summary
judgment as to liability only in the plaintiff’s favor with
respect to the federal action attorney’s fees is immedi-
ately appealable. According to the defendant, Hylton
provides that a liability determination with respect to
attorney’s fees awarded as damages may be appealed
before the amount of the attorney’s fees is determined.
The defendant claims that the federal action attorney’s
fees are similar in nature to the attorney’s fees awarded
as common-law punitive damages in Hylton and, there-
fore, the trial court’s liability determination with respect
to the federal action attorney’s fees is appealable imme-
diately. We are not persuaded.
In Hylton, our Supreme Court held that a judgment
rendered on the merits, which included an award of
common-law punitive damages limited to attorney’s
fees, was an appealable final judgment notwithstanding
the lack of a determination of the amount of the attor-
ney’s fees at the time that the appeal was filed. In the
present case, the trial court has not rendered a judgment
disposing of the merits of the present action.
The defendant is appealing only from the trial court’s
decision rendering summary judgment as to liability
only in favor of the plaintiff with respect to the federal
action attorney’s fees, which were awarded pursuant
to § 12-161a. Hylton does not stand for the proposition
that the trial court’s liability determination with respect
to the federal action attorney’s fees is immediately
appealable absent a calculation of the attorney’s fees.8
Pursuant to the rationale of Paranteau, a timely
appeal taken from a decision conclusively determining
the amount of an attorney’s fees award may challenge
both the amount and recoverability of the attorney’s
fees awarded. Applying the rationale of Paranteau to
the circumstances of the present action, we conclude
that the trial court’s decision rendering summary judg-
ment as to liability only in the plaintiff’s favor with
respect to the federal action attorney’s fees is not an
appealable final judgment absent a determination of
the amount of the attorney’s fees.9 See also Burns v.
General Motor Corp., supra, 80 Conn. App. 151 n.6 (‘‘The
situation . . . is similar to where a judgment has been
rendered only upon the issue of liability without an
award of damages. Such a judgment, being interlocutory
in character, is not a final judgment from which an
appeal lies. . . . Thus, the award of reasonable attor-
ney’s fees without a determination of the amount of
the attorney’s fees is not appealable for lack of a final
judgment.’’ [Citation omitted; internal quotation
marks omitted].).
The plaintiff’s motion to dismiss the defendant’s
appeal is granted and the appeal is dismissed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date on which this matter was considered.
1
The plaintiff’s tax assessor and the plaintiff’s tax collector were also
parties to the federal action.
2
In 2006, the Tribal Nation filed a substantively similar federal action
challenging, as unauthorized, taxes that the plaintiff was imposing on slot
machines that a different vendor owned and leased to the Tribal Nation.
The two federal actions commenced by the Tribal Nation were consolidated.
3
General Statutes § 12-161a provides: ‘‘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 (1) levy and sale with
respect to any goods or chattels owned by such person, (2) enforcement
of a lien, established and perfected in accordance with sections 12-195a to
12-195g, inclusive, upon any such goods or chattels or (3) any other proceed-
ing 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.’’
4
With respect to the effect of its decision, our Supreme Court stated: ‘‘We
are aware that the rules we have today adopted may, in some cases, lead
to ‘piecemeal’ appeals of judgments on the merits and awards of attorney’s
fees. The problem of fragmented appeals, however, may be averted if trial
judges delay rendering judgment on the merits until the fee issue is resolved
and dispose of both the merits and attorney’s fees in a single judgment.
. . . If for some reason the question of attorney’s fees must be decided
after the entry of judgment on the merits, we suggest that the trial court
insist upon the prompt filing and disposition of fee requests so that any
pending appeal on the merits of the action may be amended to include any
prospective appeal from a supplemental postjudgment award of attorney’s
fees.’’ (Citation omitted; emphasis omitted.) Paranteau v. DeVita, supra,
208 Conn. 524.
5
In McKeon, the plaintiff filed an amended appeal after the trial court
had held a hearing and had determined the amount of the attorney’s fees
at issue in that case. McKeon v. Lennon, supra, 131 Conn. App. 610. Although
this court dismissed the plaintiff’s original appeal for lack of an appealable
final judgment, it concluded that it had subject matter jurisdiction over the
plaintiff’s amended appeal. Id., 611–12.
6
See Benvenuto v. Mahajan, 245 Conn. 495, 504, 715 A.2d 743 (1998)
(concluding that judgment of strict foreclosure was appealable final judg-
ment despite lack of determination of attorney’s fees); Balf Co. v. Spera
Construction Co., 222 Conn. 211, 214–15, 608 A.2d 682 (1992) (concluding
that no appealable final judgment had been rendered where trial court had
reserved ruling on postjudgment motion for prejudgment interest).
7
On remand from our Supreme Court, this court reversed the trial court’s
judgment on the merits and ordered the trial court, on remand, to render
judgment in favor of the defendant on one count of the plaintiff’s complaint
and to conduct a new trial on the remaining counts. See Hylton v. Gunter,
157 Conn. App. 358, 366, 116 A.3d 371 (2015).
8
The defendant also asserts that we should entertain this appeal for the
sake of efficiency, claiming that, if held, the proceedings to determine the
amount of the attorney’s fees owed to the plaintiff will be extensive and
that such proceedings will be avoided if we reverse the trial court’s decision.
In addition, the defendant suggests that, by entertaining this appeal, we may
provide the trial court and the parties with guidance with regard to the
meaning and application of § 12-161a. These considerations, however, can-
not be reviewed at this time as a result of our lack of subject matter
jurisdiction over this appeal.
9
Our holding is limited to the circumstances of the present action before
us. We do not address the appealability of this matter should an appeal be
filed following a decision of the trial court determining the amount of the
federal action attorney’s fees.