State v. Prucker

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STATE OF CONNECTICUT v. BRIAN W.
PRUCKER ET AL.
(AC 38509)
Sheldon, Keller and Prescott, Js.
Argued January 13—officially released April 25, 2017
(Appeal from Superior Court, judicial district of
Hartford, Elgo, J.)
Brian W. Prucker, for the appellant (defendant Amer-
ican Legal Services, LLC).
Gary G. Williams, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, for the appellee (plaintiff).
Opinion
PRESCOTT, J. This is an action brought by the state
of Connecticut, pursuant to General Statutes §§ 17b-93
and 17b-94, to recover unreimbursed public assistance
payments that it had made to Tammy Wright, whom the
defendant American Legal Services, LLC,1 successfully
represented in a personal injury action arising out of a
motor vehicle accident. The state alleges in its action
that it was entitled to enforcement of its statutory lien
on 50 percent of the net settlement proceeds retained
by the defendant after it had settled Wright’s personal
injury claim against a third party.
The defendant appeals from the summary judgment
of the trial court rendered in favor of the state, awarding
it $250, plus interests and costs, from the net settlement
proceeds that are subject to a statutory lien held by the
state. The defendant claims that (1) summary judgment
was improperly granted because the pleadings were not
closed, (2) the court improperly determined that the
state’s action sounded in conversion, and (3) summary
judgment was improperly granted because, among
other things, there was a genuine issue of material fact
as to the appropriate calculation of the net settlement
proceeds. We affirm the judgment of the court.
Before turning to the specific claims of the defendant,
it is helpful to review briefly the statutory scheme under
which this case arises. Section 17b-93 (a) provides in
relevant part: ‘‘If a beneficiary of [public assistance]
. . . has or acquires property of any kind . . . the state
of Connecticut shall have a claim . . . which shall have
priority over all other unsecured claims and unrecorded
encumbrances, against such beneficiary for the full
amount paid . . . to the beneficiary or on the benefi-
ciary’s behalf under said [public assistance] programs
. . . .’’ In order to effectuate this recovery, the legisla-
ture also adopted § 17b-94 (a), which provides in rele-
vant part: ‘‘In the case of causes of action of
beneficiaries [of public assistance] . . . the claim of
the state shall be a lien against the proceeds therefrom
in the amount of the assistance paid or fifty per cent
of the proceeds received by such beneficiary . . . after
payment of all expenses connected with the cause of
action, whichever is less, for repayment under section
17b-93 . . . .’’ (Emphasis added.)
The record before the court, viewed in the light most
favorable to the defendant as the nonmoving party,
reveals the following facts and procedural history. On
November 25, 2013, the defendant entered into a contin-
gent fee agreement with Tammy Wright to represent
her in an action for injuries she had sustained in a car
accident (personal injury action) for which the other
driver disputed liability. In April, 2014, Wright’s vehicle
was stolen. In order to purchase a replacement vehicle,
she applied for and received a $500 loan2 from Peachtree
Funding Northeast, LLC (Peachtree) against the value
of the anticipated settlement of her personal injury
action. As part of her agreement with Peachtree, Wright
agreed to repay Peachtree $1000—the original $500 plus
a purchase price of $500—upon the occurrence of the
anticipated settlement.
On or about August 8, 2014, Wright settled her per-
sonal injury action against the other driver for $12,900.
After deducting attorney’s fees, outstanding medical
bills, the $1000 repaid to Peachtree, and other costs,
the defendant calculated Wright’s total net proceeds
from the settlement to be $5294.43.
On August 13, 2014, the state sent the defendant
notice that it held a lien against 50 percent of any net
settlement proceeds, pursuant to §§ 17b-93 and 17b-94,
because Wright had received $10,318.60 of unreim-
bursed public assistance from the state. On August 15,
2014, in an effort to discharge the lien, the defendant
sent to the state a ‘‘Statement of Account’’ alleging that
Wright’s net settlement proceeds were $5294.43, and
remitted $2647.21 as 50 percent of the net settlement
proceeds.
The state, however, in a written letter to the defen-
dant, objected to that part of the accounting statement
that treated the $1000 that was repaid to Peachtree as
an expense connected with the litigation and thus was
not included by the defendant as part of the net pro-
ceeds. In response to that objection, on September 17,
2014, the defendant sent the state a revised accounting
statement that instead attributed an expense deduction
of $500 payable to Peachtree, while reflecting Wright’s
net proceeds as $500 greater than in the previous state-
ment. In accordance with the new accounting figures,
the defendant remitted to the state a sum of $250, which
constituted 50 percent of the $500 increase to the net
proceeds.
In response, the state maintained that the remaining
$500 expense deduction for the payment to Peachtree
was not an expense connected with the personal injury
action for which a deduction is permitted under § 17b-
94 (a), and sought the remaining balance of 50 percent
of $500, that is, $250. The state subsequently initiated
this litigation against the defendant.
On April 28, 2015, the state filed a motion for summary
judgment and memorandum in support in which it
asserted, inter alia, that the loan from Peachtree and
its corresponding cost is not an expense connected to
the personal injury action because a loan is fundamen-
tally different than an ‘‘expense,’’ and the loan was to
be used by Wright to buy a car for personal use, not
to pay for litigation costs. The defendant opposed the
state’s motion for summary judgment, arguing, inter
alia, that such loans, and the costs to obtain them,
should be treated under the statute as an expense con-
nected to the action because they benefit the state as
the lienholder in that they assist the individual receiving
public assistance ‘‘to stay the course in order to max-
imize [his or her] recovery by settlement.’’
The court, Elgo, J., heard oral argument on the motion
on June 29, 2015. By memorandum of decision dated
October 21, 2015, the court granted the state’s motion
for summary judgment because, as a matter of law,
Wright’s cost to obtain the loan was not for an expense
connected with the personal injury action within the
meaning of § 17b-94 (a) but, rather, was for the purchase
of the upfront payment of $500 to be used to replace her
stolen car. It, therefore, held that this $500 deduction in
the defendant’s accounting statement was improperly
made. Subsequently, the defendant filed this appeal.
We begin by setting forth our applicable standard of
review. ‘‘The standards governing our review of a trial
court’s decision to grant a motion for summary judg-
ment are well established. Practice Book [§ 17-49] pro-
vides that summary judgment shall be rendered
forthwith if the pleadings, affidavits and any other proof
submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. . . . In deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party . . . . The party seeking summary judgment has
the burden of showing the absence of any genuine issue
[of] material facts which, under applicable principles
of substantive law, entitle him to a judgment as a matter
of law . . . and the party opposing such a motion must
provide an evidentiary foundation to demonstrate the
existence of a genuine issue of material fact. . . . A
material fact . . . [is] a fact which will make a differ-
ence in the result of the case. . . . Finally, the scope
of our review of the trial court’s decision to grant the
plaintiff’s motion for summary judgment is plenary.’’
(Internal quotation marks omitted.) DiPietro v. Farm-
ington Sports Arena, LLC, 306 Conn. 107, 115–16, 49
A.3d 951 (2012).
The defendant first claims on appeal that summary
judgment was improperly granted because the plead-
ings were not closed. We disagree. There is no require-
ment in our rules of practice that the pleadings must
be closed prior to adjudication of a motion for summary
judgment unless the case has been scheduled for trial
or there is a scheduling order. See Practice Book § 17-
44; see also Gordon v. Gordon, 170 Conn. App. 713,
722-23, A.3d (2017); Girard v. Weiss, 43 Conn.
App. 397, 416, 682 A.2d 1078 (‘‘a motion for summary
judgment can be made ‘at any time,’ without the neces-
sity of closing the pleadings’’), cert. denied, 239 Conn.
946, 686 A.2d 121 (1996). In the present case, at the
time the court rendered summary judgment, a trial had
not been scheduled, nor was there a scheduling order
in place. Accordingly, we reject this claim.
The defendant next claims that the court improperly
determined that the state’s action sounded in conver-
sion.3 We summarily dispose of this claim on the ground
that it is irrelevant whether the court properly charac-
terized the state’s complaint as sounding in conversion.
The state’s authority to seek reimbursement for public
assistance and enforce its lien is plainly authorized by
the statutory scheme. In other words, the state’s claim
is sui generis and its viability is not dependent upon
the elements of a common-law conversion claim. The
state was clearly entitled to enforce its statutory lien
on the settlement proceeds against the defendant who,
at the time of receiving notice of the lien, possessed
the funds. Accordingly, the defendant cannot prevail
on this claim.
With regard to its remaining claim, the defendant
argues that the parties dispute factually whether the
loan was for $1000 or whether it was for $500 and
whether the $500 cost to obtain the loan should be
considered as an ‘‘[expense] connected with the . . .
[personal injury] action’’ pursuant to § 17b-94 (a). We
disagree that the amount of the loan was factually in
dispute and conclude that the defendant has failed to
brief adequately its claim that the $500 cost to obtain
the loan should be considered as an expense connected
with Wright’s personal injury action.
Although the defendant bases its characterization of
the state’s position that the loan was for $1000 on a
single allegation contained in its complaint,4 the state
contests the notion that it ever disagreed with the defen-
dant as to the amount of the loan, stating in its brief
that ‘‘[t]he [state] accepted, and accepts, as did the
Superior Court . . . the figures set forth by the Defen-
dant in its two Settlement Statements . . . and the
Defendant’s responses to the [state’s] interrogatories
nos. 1 and 4 . . . : that $500 was borrowed by [Wright]
from Peachtree; that $1000 was ultimately paid to
Peachtree out of the settlement proceeds in repayment
of said [loan]; and that two remittances were made to
the [state’s] Department of Administrative Services on
its statutory lien, the second of which included a $250
reimbursement associated with the Peachtree loan.’’
Upon our review of the record, we agree with the state
that there is no dispute between the parties as to the
amount of the loan: both maintain Wright received $500
from Peachtree.
More importantly, however, the distinction between
labelling the funds a $1000 loan and labelling it a $500
loan that carries a $500 ‘‘deduction’’ cost, as the defen-
dant does, does not equate to a dispute regarding a
material fact because it is not ‘‘a fact which will make
a difference in the result of the case.’’ DiPietro v. Farm-
ington Sports Arena, LLC, supra, 306 Conn. 116. It
ultimately does not matter what label is assigned to the
$1000 paid to Peachtree because the trial court decided,
as a matter of law, that the cost of obtaining the loan
is not an ‘‘[expense] connected with the . . . [personal
injury] action’’ within the meaning of the lien statute,
§ 17b-94 (a). Accordingly, the court reasoned, the defen-
dant improperly deducted the $500 cost of obtaining
the loan before calculating the net proceeds of the set-
tlement.
Because the entire $1000 repayment to Peachtree
should have been included in the net settlement pro-
ceeds, not just the $500 loan itself, the court found
that the defendant’s net figure was short by $500, and
because the state was entitled to 50 percent of that
additional $500 under the lien provisions of § 17b-94
(a), the court awarded the state the $250 it sought from
the defendant. For these reasons, we conclude that the
financial calculations under the lien statute, and, thus,
the end result of the case here, would have been the
same, no matter if the funding from Peachtree was
referred to as ‘‘a $1000 loan’’ or ‘‘a $500 loan with a
$500 cost.’’ Therefore, there was no genuine issue of
material fact that precluded the court from entering
summary judgment.
Significantly, we note that the defendant dedicates
merely one sentence in its brief to challenging the
court’s conclusion that, as a matter of law, the cost to
obtain the loan was not an expense connected to the
personal injury action within the meaning of § 17b-94
(a).5 That single assertion appears midway through the
defendant’s conclusion, wherein it baldly states for the
first time that ‘‘[t]he underlying question is whether the
cost of [a loan] is a cost of litigation.’’ (Emphasis in
original.) The defendant provides no analysis of that
fundamental question in its brief. More specifically, it
fails to cite to any cases in support of this claim or to
engage in any statutory analysis of the phrase ‘‘expenses
connected with the cause of action’’ in order to divine
the legislative intent behind § 17b-94 (a). In fact, the
defendant does not even repeat the contention that it
made before the trial court with regard to this claim,
i.e., that the cost of the loan should be treated as a
cost connected to the personal injury action because
it allowed Wright to continue her litigation to its maxi-
mum potential, thereby increasing the chances that the
state, in turn, would be able to recover more money
from Wright.
In sum, the defendant’s brief contains only five pages
of analysis that it devotes to other issues, and this court
has long held that ‘‘[w]here the parties cite no law and
provide no analysis of their claims, we do not review
such claims.’’ (Internal quotation marks omitted.) Jalb-
ert v. Mulligan, 153 Conn. App. 124, 133, 101 A.3d 279,
cert. denied, 315 Conn. 901, 104 A.3d 107 (2014). Accord-
ingly, we do not consider the merits of this question.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The action also was originally commenced against Brian W. Prucker
individually, but was later withdrawn as to him. Hereafter, references to
the defendant are to American Legal Services, LLC.
2
Although the parties use both the term ‘‘advance’’ and the term ‘‘loan’’
in describing the funds paid by Peachtree, we conclude that it is more
accurate to refer to the funds as a ‘‘loan.’’
3
In briefing this claim, the defendant also argues, without any supporting
analysis, that a genuine issue of material fact exists as to whether the state
adequately complied with § 17b-94 (a) by presenting an executed assignment
from Wright to the defendant. Because it is inadequately briefed; see Jalbert
v. Mulligan, 153 Conn. App. 124, 133, 101 A.3d 279, cert. denied, 315 Conn.
901, 104 A.3d 107 (2014); we decline to address this argument.
4
As support for its assertion that the state claims that the loan was for
$1000, the defendant points to paragraph seven of the state’s complaint,
which alleges that the defendant’s accounting statement ‘‘contained an
improper deduction to [Peachtree] in the amount of $500, which deduction
was not for an expense connected with the . . . [personal injury] action
but was, upon information and belief, a repayment of [a loan] made by
[Peachtree] to [Wright].’’ (Emphasis added.) The defendant then states in
its brief ‘‘[a]t the 50% . . . reimbursement pursuant to . . . § 17b-94 (a)
rate, the [loan] [according to the state] would be $1000 . . . .’’
5
We note that, in its reply brief, the defendant raises, for the first time,
the claim that summary judgment was improperly granted because there
was a genuine issue of material fact as to how Wright actually utilized the
loan from Peachtree. Specifically, the defendant argues in its reply brief
that although the motivation for Wright obtaining the loan was to buy a
vehicle to replace her stolen one, there was no evidence presented as to
how it was actually used, and, thus, ‘‘testimony [was] required . . . to
[show] whether the expense [was not] ‘connected with the . . . [personal
injury] action’ pursuant to the statute. . . .’’ ‘‘It is well established . . . that
[c]laims . . . are unreviewable when raised for the first time in a reply
brief. . . . Our practice requires an appellant to raise claims of error in his
original brief, so that the issue as framed by him can be fully responded to
by the appellee in its brief, and so that we can have the full benefit of that
written argument. Although the function of the appellant’s reply brief is to
respond to the arguments and authority presented in the appellee’s brief, that
function does not include raising an entirely new claim of error.’’ (Internal
quotation marks omitted.) SS-II, LLC v. Bridge Street Associates, 293 Conn.
287, 302, 977 A.2d 189 (2009). Accordingly, we decline to review the merits
of this claim.