Cornelius v. Rosario

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FREDERICK CORNELIUS v. LYDIA ROSARIO ET AL.
(AC 37210)
DiPentima, C. J., and Gruendel and Mullins, Js.*
Argued January 20—officially released July 26, 2016
(Appeal from Superior Court, judicial district of
Hartford, Vacchelli, J.)
Frederick Cornelius, self-represented, the appellant-
appellee (plaintiff).
Rebecca M. Harris, for the appellee-appellant
(named defendant).
Opinion
DiPENTIMA, C. J. The plaintiff, Frederick Cornelius,
appeals from the judgment of the trial court, awarding
the defendant Lydia Rosario, the former tax collector
for the city of Hartford (city), attorney’s fees and costs
incurred by her in successfully defending the plaintiff’s
2007 challenge to the tax sale of certain property.1 On
appeal, the plaintiff argues that (1) General Statutes
§ 12-140 allows for costs only and not attorney’s fees,
(2) he is not the ‘‘delinquent taxpayer’’ under § 12-140,
(3) recovery of attorney’s fees pursuant to § 12-140 is
preempted by 42 U.S.C. § 1988, and (4) the defendant’s
motion for attorney’s fees was untimely. The defendant
has filed a cross appeal, challenging the denial of a
portion of the requested attorney’s fees and costs. We
affirm in part and reverse in part the judgment of the
trial court.
The following facts, as set forth in Cornelius v. Rosa-
rio, 138 Conn. App. 1, 51 A.3d 1144, (Cornelius I), cert.
denied, 307 Conn. 934, 56 A.3d 713 (2012), cert. denied
sub nom. Cornelius v. Nelson, U.S. , 134 S. Ct.
386, 187 L. Ed. 2d 28 (2013), are relevant to this appeal.
‘‘On November 22, 2004, the plaintiff, a sophisticated
real estate investor, purchased . . . property [located
at 78 Beacon Street in Hartford] from Mercury [Mort-
gage Company, Inc. (Mercury)], as an investment prop-
erty. Neither the plaintiff nor his attorney recorded the
warranty deed reflecting the sale in Hartford’s land
records. The real estate taxes were not paid on the
property from January 1, 2004 through July 1, 2007. The
defendants [city and Rosario] filed tax liens against the
property on June 11, 2004, May 2, 2005, June 16, 2006,
and May 25, 2007. On July 12, 2007, the defendants
executed a tax levy on the property for unpaid taxes
in the amount of $18,698.94, and sold the property to
the highest bidders at a tax sale. Prior to executing the
tax sale, the defendants attempted to provide notice to
all record owners/taxpayers, lienholders, mortgagees
and encumbrancers of the property after performing
a search of the Hartford land records, city assessor’s
records and tax division records to determine who was
entitled to receive notice. The search of the records
revealed that the owner of record was Mercury and
that the law firm of Hunt, Leibert, Chester & Jacobson,
P.C. (Hunt Leibert), the Metropolitan District Commis-
sion (Metropolitan) and the city held liens on the prop-
erty. There was no record of the plaintiff’s interest in the
property on Hartford’s land records or in the assessor’s
records. Additionally, there was no record of the plain-
tiff ever having paid taxes on the property.’’ Id., 5. After
the defendants’ notice of the tax sale to Mercury was
returned as undelieverable, the defendants attempted
to find another address for Mercury, and to locate an
agent of Mercury. Id., 5–6. They ultimately sent the
notice to Mercury’s attorney, Hunt Leibert. Id., 6.
In 2008, the plaintiff commenced this action seeking
to quiet title and a declaration that the 2007 tax sale of
the property was null and void. The plaintiff claimed
that the city sold the property without providing proper
notice of the sale to him. Rosario was named as a
defendant in the action. The plaintiff subsequently
amended his complaint to add a count, pursuant to 42
U.S.C. § 1983, for money damages stemming from the
alleged violation of his constitutional due process
rights. Thereafter, the plaintiff and the defendant each
filed a motion for summary judgment. On February
1, 2011, the court granted the defendant’s motion for
summary judgment and denied the plaintiff’s motion
for summary judgment. The plaintiff appealed to this
court, which affirmed the judgment of the trial court in
a decision released September 11, 2012. See Cornelius I,
supra, 138 Conn. App. 1. On November 27, 2012, our
Supreme Court denied the plaintiff’s petition for certifi-
cation to appeal. Cornelius v. Rosario, 307 Conn. 934,
56 A.3d 713 (2012). On October 7, 2013, the United
States Supreme Court denied the plaintiff’s petition for
a writ of certiorari. Cornelius v. Nelson, U.S. ,
134 S. Ct. 386, 187 L. Ed. 2d 28 (2013). On October 8,
2013, the plaintiff filed a motion to open the judgment,
which the court denied on December 12, 2013. On Janu-
ary 6, 2014, the plaintiff filed a motion to reargue the
denial of his motion to open, which the court denied
on January 24, 2014.2
On December 18, 2012, the defendant filed a motion
for attorney’s fees and costs pursuant to § 12-140. In that
motion, the defendant claimed that she had incurred
$120,114.84 in legal fees and costs in defending the
plaintiff’s action. The plaintiff opposed the motion,
arguing that it was untimely with regard to the fees
incurred at trial and premature with regard to the fees
incurred on appeal. On March 24, 2014, the defendant
filed a second motion for attorney’s fees and costs,
claiming that she had incurred $139,285.01 in legal fees
and costs at the trial court and on appeal. The court
initially denied the defendant’s motion due to her failure
to appear at a hearing to justify the fees or to respond
to the plaintiff’s arguments against allowance of the
fees. The court subsequently allowed reargument, and
both sides presented arguments on the merits. At this
time, the defendant supplemented her request for attor-
ney’s fees and costs, seeking a total award of
$140,955.51.
By decision dated July 28, 2014, the court found that
the defendant’s request for attorney’s fees and costs
initially incurred in the trial court was untimely. The
court further found that the defendant’s request for
appellate attorney’s fees and costs, as well as fees and
costs incurred postjudgment to secure the judgment,
were recoverable. In sum, the court awarded the defen-
dant a total of $40,824.11 for attorney’s fees and costs.
The plaintiff subsequently appealed, and the defendant
cross appealed from this judgment.
I
The plaintiff claims that § 12-140 allows for the recov-
ery of only costs and not attorney’s fees. The defendant
counters that § 12-140 plainly and unambiguously pro-
vides for the recovery of attorney’s fees. We agree with
the defendant.
The plaintiff’s claim raises a question of statutory
interpretation. ‘‘The principles that govern statutory
construction are well established. 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 to first 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. . . . Statutory construction concerns a
question of law over which we exercise plenary review.’’
(Citation omitted; internal quotation marks omitted.)
Goodwin v. Colchester Probate Court, 162 Conn. App.
412, 427, 133 A.3d 156, cert. denied, 320 Conn. 924, 133
A.3d 878 (2016).
Section 12-140, entitled ‘‘Fees, costs and expenses
of tax collectors and tax sales,’’ provides: ‘‘The fee of
collectors for issuing an alias tax warrant shall be six
dollars. All reasonable and necessary costs or expenses
for necessary advertising, postage on notices, and rea-
sonable sums paid town clerks or other persons for
examining records to ascertain encumbrances upon
property sold, for preparing notices at the direction
of the tax collector, for drafting collector’s deeds, for
attorney’s fees, for all fees and costs incurred by the
municipality in defending any civil action brought
as a result of a tax sale or an alias tax warrant or
which seeks to enjoin or declare unlawful any tax sale
or alias tax warrant, for the services of auctioneers,
clerks and other persons retained to assist the collector
in conducting the tax sale, for filings in the land records,
fees paid to any federal, state or local government entity
or agency and for any other fees and expenses incurred
or otherwise provided by law shall be paid by the delin-
quent taxpayer or as provided in section 12-157.’’
(Emphasis added.) The court held that this statute
unambiguously allowed an award of reasonable attor-
ney’s fees incurred by tax collectors in successfully
defending actions challenging tax sales, as occurred in
the present case. We agree and conclude that pursuant
to the plain meaning of the statute, the defendant was
entitled to seek the recovery of reasonable attorney’s
fees incurred in defending the plaintiff’s action.3
II
The plaintiff next claims that, pursuant to Cornelius I,
the ‘‘delinquent taxpayer’’ for purposes of § 12-140 is
Mercury, not the plaintiff. We disagree.
In Cornelius I, the plaintiff argued in part that his
interest in the property was reasonably ascertainable,
and, therefore, the defendants were constitutionally
bound to mail notice of the tax sale to him. Cornelius I,
supra, 138 Conn. App. 17. We disagreed with the plain-
tiff, concluding that ‘‘[General Statutes § 12-157 (a)]
does not require that persons or entities with unre-
corded interests be notified, nor does it require a city
to search its departments for unrecorded interests. Sec-
tion 12-157 (a) requires notice only to persons with a
recorded interest in the property, and that limitation is
consistent with due process.’’ Id., 18.
The plaintiff appears to argue, on the basis of Corne-
lius I, that Mercury was the delinquent taxpayer under
12-140. Contrary to the plaintiff’s contention, we did
not determine that the Mercury was the delinquent tax-
payer in that case. We concluded, rather, that because
the plaintiff’s interest in the property was unrecorded,
he was not entitled to notice of the tax sale. We further
held that the defendant complied with the statutory
notice provisions of § 12-157 by providing notice to
Mercury as the record owner of the property. Id., 13.
It is undisputed that the plaintiff purchased the prop-
erty from Mercury in 2004. As the trial court noted in
its decision, the plaintiff admitted that he was the owner
of the property. As such, the plaintiff was required to
pay the taxes on the property; having failed to do so, the
plaintiff is the delinquent taxpayer pursuant to § 12-140.
III
The plaintiff next claims that the recovery of attor-
ney’s fees pursuant to § 12-140 is preempted by 42 U.S.C.
§ 1988. We disagree.
As explained in part I of this opinion, § 12-140 permits
the court to award reasonable attorney’s fees incurred
by tax collectors in successfully defending actions chal-
lenging tax sales. Pursuant to 42 U.S.C § 1988 (b), how-
ever, an award of attorney’s fees to a prevailing
defendant is permitted only if the plaintiff’s claim was
‘‘frivolous, unreasonable, or groundless, or [when] the
plaintiff continued to litigate after it clearly became
so.’’ (Internal quotation marks omitted.) Singhaviroj v.
Board of Education, 301 Conn. 1, 17–18, 17 A.3d 1013(2011). According to the plaintiff, because the standard
for the award of attorney’s fees is less restrictive under
§ 12-140, that section stands as an obstacle to the reme-
dial purposes of 42 U.S.C. § 1983. The plaintiff contends
that it is, therefore, preempted by § 1988.4
‘‘The question of preemption is one of federal law
arising under the supremacy clause of the United States
constitution. . . . Determining whether Congress has
exercised its power to preempt state law is a question
of legislative intent. The Supreme Court has limited
preemption to three circumstances. . . . First, state
law is preempted when Congress has made its intent
known through explicit statutory language . . . . Sec-
ond, a state law implicitly is preempted when it regu-
lates conduct in a field that Congress intended the
[f]ederal [g]overnment to occupy exclusively. . . . The
intent to occupy a particular field may be inferred from
a scheme of federal regulation . . . so pervasive as to
make reasonable the inference that Congress left no
room for the [s]tates to supplement it, or where an
[a]ct of Congress touch[es] a field in which the federal
interest is so dominant that the federal system will be
assumed to preclude enforcement of state laws on the
same subject. . . . Even with implied field preemption,
however, when Congress has legislated in a field which
the [s]tates have traditionally occupied . . . [a court
starts] with the assumption that the historic police pow-
ers of the [s]tates were not to be superseded by the
[f]ederal [a]ct unless that was the clear and manifest
purpose of Congress.’’ (Citations omitted; internal quo-
tation marks omitted.) Connecticut Coalition Against
Millstone v. Connecticut Siting Council, 286 Conn. 57,
69–70, 942 A.2d 345 (2008).
‘‘Third, and finally, a state law may be preempted
when it is impossible for a private party to comply with
both state and federal law . . . and where under the
circumstances of [a] particular case, [the challenged
state law] stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of
Congress. . . . What is a sufficient obstacle is a matter
of judgment, to be informed by examining the federal
statute as a whole and identifying its purpose and
intended effects . . . .’’ (Internal quotation marks
omitted.) Id., 71.
The plaintiff has limited his claim to the third type
of preemption, specifically, whether the state law
‘‘stands as an obstacle to the accomplishment and exe-
cution of the full purposes and objectives of Congress.’’
(Internal quotation marks omitted.) Id. Under the cir-
cumstances of this case, we do not agree with the plain-
tiff that § 12-140, which permits the award of attorney’s
fees for successfully defending a tax sale, stands as an
obstacle to 42 U.S.C. § 1988, which governs the award
of attorney’s fees in actions brought pursuant to 42
U.S.C. § 1983. In considering this claim, we recognize
that there is a strong presumption against federal pre-
emption of state and local legislation and that such
presumption is especially strong in areas traditionally
the province of the states. See Connecticut Coalition
Against Millstone v. Connecticut Siting Council, supra,286 Conn. 70; Dowling v. Slotnick, 244 Conn. 781, 794,
712 A.2d 396, cert. denied sub nom. Slotnik v. Consid-
ine, 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451(1998).
As explained by our Supreme Court, a higher stan-
dard is required to award attorney’s fees to a prevailing
defendant in an action brought pursuant to 42 U.S.C.
§ 1983 because ‘‘a more liberal standard would undercut
the efforts of Congress to promote the vigorous enforce-
ment of our civil rights laws.’’ (Internal quotation marks
omitted.) Singhaviroj v. Board of Education, supra,
301 Conn. 17–18. Section 1988 of title 42 of the United
States Code gives no indication that Congress intended
to preempt state laws regarding municipal property tax-
ation, an area typically occupied by the state. Under
the plaintiff’s reasoning, if a plaintiff raises a § 1983
claim as part of a challenge to a tax sale, a municipality
would be unable to recover the attorney’s fees and
costs incurred to defend the tax sale unless there was
a showing that the plaintiff’s action was ‘‘frivolous,
unreasonable or groundless, or that the plaintiff contin-
ued to litigate after it clearly became so.’’ 42 U.S.C.
§ 1988 (b). We agree with the defendant that such a
holding would have a chilling effect on the use of tax
sales as a means of collecting unpaid property taxes.
In light of the strong presumption against federal pre-
emption of state and local legislation, particularly in
areas traditionally occupied by the states, we decline
to find that the recovery of attorney’s fees under § 12-
140 is preempted by the application of § 1988. See Fair
Assessment in Realty Assn., Inc. v. McNary, 454 U.S.
100, 115–16, 102 S. Ct. 177, 70 L. Ed. 2d 271 (1981)
(holding that taxpayers are barred from asserting § 1983
actions against validity of state tax systems in federal
court when state law furnishes adequate legal remedy
and stating: ‘‘The recovery of damages under the Civil
Rights Act first requires a declaration or determination
of the unconstitutionality of a state tax scheme that
would halt its operation. And damages actions, no less
than actions for an injunction, would hale state officers
into federal court every time a taxpayer alleged the
requisite elements of a § 1983 action. We consider such
interference to be contrary to [t]he scrupulous regard
for the rightful independence of state governments
which should at all times actuate the federal courts.’’
[Internal quotation marks omitted.]).
IV
We next consider the issues related to the timeliness
of the defendant’s motions for attorney’s fees. These
issues are raised in the plaintiff’s appeal and the defen-
dant’s cross appeal. Specifically, the plaintiff argues
that although the court properly denied the defendant’s
motion for attorney’s fees initially incurred in the trial
court, it improperly awarded the defendant appellate
attorney’s fees, as well as attorney’s fees related to
defending the plaintiff’s postjudgment motion to open.
In her cross appeal, the defendant claims that the court
erred in denying her motion for attorney’s fees related
to the initial proceedings in the trial court. The resolu-
tion of these claims involves an interpretation of Prac-
tice Book § 11-21, which provides in relevant part:
‘‘Motions for attorney’s fees shall be filed with the trial
court within thirty days following the date on which
the final judgment of the trial court was rendered. If
appellate attorney’s fees are sought, motions for such
fees shall be filed with the trial court within thirty days
following the date on which the appellate court or
supreme court rendered its decision disposing of the
underlying appeal. . . .’’
‘‘As a preliminary matter, we set forth the applicable
standard of review. The interpretive construction of the
rules of practice is to be governed by the same princi-
ples as those regulating statutory interpretation. . . .
The interpretation and application of a statute, and thus
a Practice Book provision, involves a question of law
over which our review is plenary.’’ (Citations omitted;
internal quotation marks omitted.) Wiseman v. Arm-
strong, 295 Conn. 94, 99, 989 A.2d 1027 (2010).
A
The Plaintiff’s Appeal
On November 27, 2012, our Supreme Court denied
the plaintiff’s petition for certification to appeal the
decision in Cornelius I. See Cornelius v. Rosario, supra,
307 Conn. 934. On December 18, 2012, the defendant
filed her first motion for attorney’s fees and costs. The
defendant filed a later motion for attorney’s fees and
costs on March 24, 2014.5 As the defendant’s first motion
was filed within thirty days following the date on which
our Supreme Court rendered its decision disposing of
the underlying appeal, the motion was timely under
§ 11-21 with regard to the appellate attorney’s fees.6
Further, citing TDS Painting & Restoration v. Copper
Beach Farm, Inc., 73 Conn. App. 492, 516–17, 808 A.2d
726, cert. denied, 262 Conn. 925, 814 A.2d 379 (2002),
the court awarded the defendant the attorney’s fees
and costs that she incurred postjudgment to secure the
judgment in her favor. Specifically, the court awarded
attorney’s fees and costs associated with successfully
defending against the plaintiff’s petition for a writ of
certiorari and the plaintiff’s motion to open the judg-
ment.7 The plaintiff does not dispute that attorney’s
fees and costs incurred postjudgment are eligible for
consideration. He argues, however, that the defendant’s
motion for attorney’s fees and costs was untimely as
to these items. We agree that the defendant’s motion
was untimely with regard to the attorney’s fees incurred
in defending the plaintiff’s motion to open.
On October 8, 2013, following the denial of the peti-
tion for certification by the Connecticut Supreme Court
and the denial of the petition for a writ of certiorari by
the United States Supreme Court, the plaintiff filed a
motion to open. The court denied this motion on
December 12, 2013. On January 6, 2014, the plaintiff
filed a motion to reargue the denial of his motion to
open, which the court denied on January 24, 2014.
Notice of the denial of the motion to reargue issued on
February 19, 2014.
‘‘The denial of a motion to open is an appealable
final judgment.’’ (Internal quotation marks omitted.)
JPMorgan Chase Bank, N.A. v. Eldon, 144 Conn. App.
260, 272, 73 A.3d 757, cert. denied, 310 Conn. 935, 79
A.3d 889 (2013); see also Misata v. Con-Way Transpor-
tation Services, Inc., 106 Conn. App. 736, 741–43, 943
A.2d 537 (2008). In the present case, the defendant’s
March 24, 2014 motion for attorney’s fees and costs
was not filed within thirty days of the denial of the
motion to open or within thirty days of the notice of
the denial of the motion to reargue the motion to open,
as required by Practice Book § 11-21. Accordingly, the
court improperly awarded the defendant attorney’s fees
in connection with defending the plaintiff’s motion to
open.
B
The Defendant’s Cross Appeal
Finally, we address the defendant’s claim that the
trial court improperly declined to award attorney’s fees
for the fees initially incurred at the trial court. As indi-
cated previously in this opinion, on February 1, 2011, the
trial court granted the defendant’s motion for summary
judgment and denied the plaintiff’s motion for summary
judgment. On December 18, 2012, the defendant filed
her first motion for attorney’s fees and costs. The trial
court held that because the motion was filed more than
thirty days following the date that the final judgment
was rendered, it was untimely under Practice Book
§ 11-21. We agree.
According to the defendant, Practice Book § 11-21
can be read to allow a motion for attorney’s fees
incurred in the trial court to be filed within thirty days
of the final judgment if no appeal is filed and within
thirty days of the disposition of the appeal if an appeal
is filed. The defendant relies on Rizzo Pool Co. v. Del
Grosso, 240 Conn. 58, 689 A.2d 1097 (1997) and Jacques
All Trades Corp. v. Brown, 57 Conn. App. 189, 752 A.2d
1098 (2000) in support of this proposition. In Rizzo Pool
Co., the plaintiff brought a breach of contract action
against the defendants. The plaintiff prevailed at trial,
but our Supreme Court reversed the judgment, conclud-
ing, inter alia, that the plaintiff’s undisputed violation
of the Home Improvement Act rendered the contract
unenforceable. Rizzo Pool Co. v. Del Grosso, supra,
60. The matter was remanded to the trial court with
direction to render judgment in favor of the defendants.
Id., 61. On remand, the defendants moved in the trial
court for attorney’s fees pursuant to General Statutes
§ 42-150bb. Id. The plaintiff objected on the ground that
the defendants had not preserved the issue of attorney’s
fees in their initial appeal. Id. In rejecting this argument,
our Supreme Court stated: ‘‘[B]ecause the defendants
had not been successful, they had neither reason nor
opportunity to seek such an award at that time. We do
not generally require parties to engage in futile conduct.
. . . Consequently, because the defendants were not
in a position to raise the issue of attorney’s fees until
they succeeded on appeal, we fail to see how they were
in a position to have waived their claim. Similarly, there
was no reason for the defendants to have raised the
issue of an award of attorney’s fees before this court.
This is not an instance of a party seeking to raise an
issue after an appeal that could have been raised in the
earlier appeal.’’ (Citation omitted; footnote omitted.)
Id., 63–64.
In Jacques All Trades Corp., this court followed
Rizzo Pool Co. with regard to the defendant’s motion
for attorney’s fees, stating: ‘‘[S]hortly after successfully
defending against [the plaintiff’s] claims in our Supreme
Court, which finally resolved this matter . . . [the
defendant] filed a motion for attorney’s fees pursuant
to § 42-150bb. Had [the defendant] filed her motion prior
to our Supreme Court’s decision, when she had not yet
successfully defended this matter, her motion pursuant
to § 42-150bb would not have been proper. [The defen-
dant’s] motion, therefore, was in fact timely and
proper.’’ Jacques All Trades Corp. v. Brown, supra, 57
Conn. App. 201.
Contrary to the defendant’s claim, Rizzo Pool Co. and
Jacques All Trades Corp. do not stand for the proposi-
tion that a prevailing party in the trial court, such as the
defendant in the present case, can await the outcome
of any appellate litigation before filing a motion for
attorney’s fees incurred in securing a favorable final
judgment in the trial court. Furthermore, Rizzo Pool
Co. and Jacques All Trades Corp. involved motions for
attorney’s fees that had been filed prior to the adoption
of Practice Book § 11-21 in 1999. That rule provides in
relevant part that ‘‘[m]otions for attorney’s fees shall
be filed with the trial court within thirty days following
the date on which the final judgment of the trial court
was rendered. If appellate attorney’s fees are sought,
motions for such fees shall be filed with the trial court
within thirty days following the date on which the appel-
late court or supreme court rendered its decision dis-
posing of the underlying appeal.’’ Practice Book § 11-
21. Our Supreme Court, interpreting this rule, has stated
that Practice Book § 11-21 ‘‘provides a specific post-
judgment procedure for seeking statutory attorney’s
fees.’’ Traystman, Coric & Keramidas, P.C. v. Daigle,
282 Conn. 418, 430, 922 A.2d 1056 (2007). ‘‘It is reason-
able to conclude that the rule requiring motions for
attorney’s fees to be filed within thirty days of a final
judgment was adopted in recognition of the fact that a
determination of reasonable attorney’s fees requires the
trial court to have fresh familiarity with the nature and
conduct of the case . . . [and] to conclude that § 11-21
was adopted to avoid an extended period of uncertainty
about this potential liability after judgment.’’ (Citations
omitted.) Id., 431–32. Applying this rationale to the pre-
sent case, we conclude that the court properly denied
the motion for attorney’s fees incurred in the trial court
as untimely.
The judgment is reversed only as to the award of
attorney’s fees incurred by the defendant in defending
the plaintiff’s motion to open the judgment and the case
is remanded with direction to determine the appropriate
amount of attorney’s fees in accordance with this opin-
ion; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
In the original action before the trial court, the defendants included
Rosario, Hartford, Albertina Ward, Patricia Franklin, Edward Baum and J&
E Investment. The action was withdrawn as to Baum. The court granted a
motion to strike as to Ward, Franklin and J&E Investment. The court granted
summary judgment in favor of the city and Rosario. See Cornelius v. Rosario,
138 Conn. App. 1, 51 A.3d 1144, cert. denied, 307 Conn. 934, 56 A.3d 713(2012), cert. denied sub nom. Cornelius v. Nelson, U.S. , 134 S. Ct.
386, 187 L. Ed. 2d 28 (2013). Although the city and Rosario participated
in the prior appeal, for purposes of this opinion, we refer to Rosario as
the defendant.
2
It appears that notice of the January 24, 2014 order denying the plaintiff’s
motion to reargue issued on February 19, 2014.
3
We note the plaintiff’s contention that the court improperly cited General
Statutes (Rev. to 2013) § 12-140, as amended by No. 13-276, § 17, of the 2013
Public Acts, rather than General Statutes (Rev. to 2007) § 12-140, which
would have been in effect when this action commenced in 2008. According
to the plaintiff, the earlier revision of the statute only allowed for the recovery
of ‘‘costs incurred by the municipality in defending any civil action’’ and
did not mention attorney’s fees. We disagree. The earlier revision of the
statute provided: ‘‘The fee of collectors for issuing an alias tax warrant shall
be six dollars. The fees of collectors upon a levy and sale shall be as follows:
For each levy on real or personal property, twenty cents; for each notice
posted, filed, published or sent by mail, as required by law, twenty-five
cents; for each mile of travel from the residence of the collector to the
farthest point where he is by law required to take a notice, or to go to levy
upon personal property, and thence back to his residence once, twenty
cents; for each sale of real or personal property, four dollars; for each deed
or bill of sale, two dollars. All other reasonable and necessary costs or
expenses for necessary advertising, postage on notices, and reasonable sums
paid town clerks or other persons for examining records to ascertain encum-
brances upon property sold, for preparing notices at the direction of the
tax collector, for drafting collector’s deeds, for attorney’s fees, for all costs
incurred by the municipality in defending any civil action brought as a
result of a tax sale or an alias tax warrant or which seeks to enjoin
or declare unlawful any tax sale or alias tax warrant, for the services of
auctioneers, clerks and other persons retained to assist the collector in
conducting the tax sale and for any other fees and expenses incurred, shall
be added to the above fees. All fees and additions provided for by this
section shall be paid by the delinquent taxpayer or as provided in section
12-157.’’ (Emphasis added.) General Statutes (Rev. to 2007) § 12-140. Even
if the plaintiff is correct and the court should have cited the earlier revision
of the statute, the prior revision of the statute also provided for the recovery
of attorney’s fees by the defendant. The plaintiff, therefore, cannot prevail
on this claim.
4
In considering this claim, the trial court, citing Simms v. Chaisson, 277
Conn. 319, 332, 890 A.2d 548 (2006), held that because the defendant was
seeking attorney’s fees pursuant to § 12-140, not 42 U.S.C. § 1988, federal
law was not binding. While we agree that federal law is not binding when
interpreting a state statute, we note that Simms did not involve a claim of
federal preemption.
5
The plaintiff argues that the defendant’s motion for attorney’s fees and
costs was not filed until March 24, 2014. According to the plaintiff, the court
improperly ‘‘reiterated’’ the defendant’s claim for attorney’s fees made on
December 18, 2012. Contrary to the plaintiff’s contention, our review of the
record reveals that a motion for attorney’s fees and costs was filed on
December 18, 2012. That motion requested trial and appellate attorney’s
fees. The plaintiff objected to the motion on the ground, inter alia, that
‘‘[t]he time limit for certification to the United States Supreme Court is
ninety days from the denial of certification to the Connecticut Supreme
Court, which occurred on November 27, 2012. The appeal period has not
expired, and consequently the ultimate ‘prevailing party’ which may allow
an award of appellate attorney’s fees under certain circumstances, has not
been determined.’’ (Emphasis in original.) The defendant filed another
motion for attorney’s fees and costs on March 24, 2014. That motion sought
attorney’s fees related to the initial trial court proceedings, the fees expended
in defending the plaintiff’s appeals to the Connecticut Appellate Court, the
Connecticut Supreme Court, and the United States Supreme Court, as well
as the plaintiff’s motion to open the judgment and motion to reargue the
denial of his motion to open the judgment. The court considered both
motions in its ruling, specifically noting that the defendant’s March 24, 2014
motion ‘‘supplemented an earlier, similar motion dated December 18, 2012’’
and that her motion was ‘‘further supplemented at a hearing held on June
30, 2014.’’
6
We disagree with the plaintiff that the motion for attorney’s fees and
costs was untimely because it was not filed within thirty days of October
7, 2013, the date that the United States Supreme Court denied his petition
for a writ of certiorari.
7
The court denied the defendant’s request for certain attorney’s fees that
were related to her failure to appear at the initial hearing on her motion
for attorney’s fees and costs.