Opinion
No. FST CV 92-0128759 S
December 21, 2010
Memorandum of Decision
This action to foreclose a judgment lien was filed in 1992. Since that time, the case has been the subject of three decisions by the Appellate Court. The underlying facts are set forth in the decisions of the Appellate Court which can be found at 78 Conn.App. 305 (2003); 107 Conn.App. 130 (2007); and 121 Conn.App. 593 (2010). Presently before the court are the plaintiff's motion for order of disbursement dated September 28, 2010 (#323); the plaintiff's motion for interest, attorneys fees and costs dated September 28, 2010 (#324) and the defendant's objection to the motion for interest, attorneys fees and costs dated October 8, 2010 (#325).
The original defendants in this action included James Becker and others. Judith Becker, who successfully moved to be made a defendant, is the only remaining defendant in the action. She will be referred to in this memorandum as the "defendant."
The motion for order of disbursement follows the June 8, 2010 decision of the Appellate Court affirming the award of attorneys fees to the plaintiff in the amount of $62,916.75. The motion requests that the court order the release to the plaintiff of funds held jointly in escrow by counsel for the plaintiff and counsel for the defendant. In his second motion, the plaintiff asks for: (1) an award of additional attorneys fees incurred in the successful defense of the defendant's most recent appeal and (2) statutory interest pursuant to General Statutes § 52-350f on the amounts awarded to the plaintiff but not yet paid.
The plaintiff abandoned a request that the court award additional costs, stating that a taxation of costs would be filed with the clerk as contemplated by Practice Book § 18-5(a).
The court held hearings on the plaintiff's motions and the defendant's objection on November 15 and 16, 2010. The parties subsequently submitted briefs on the issues of law that were discussed during the hearing.
AWARD OF ADDITIONAL ATTORNEYS FEES
The plaintiff claims to be entitled to an award of additional attorneys fees in connection with the successful defense of the defendant's appeal of the award of attorneys fees in the amount of $62,916.75. In his motion, the plaintiff claims that such an award is supported by either General Statutes §§ 52-249(a) or 52-400c. The plaintiff further claims that he is entitled to attorneys fees because of a prior ruling issued by the court, Mintz, J., before the defendant's most recent appeal. At the close of the hearing at which attorneys fees were awarded to the plaintiff, Judge Mintz stated: "If an appeal is taken to this, you're going to be entitled to additional attorneys fees — absolutely, positively if you're successful." The plaintiff apparently believes that this statement constitutes "the law of the case" and that consequently he is, ispo facto, entitled to an award of attorneys fees without demonstrating any further contractual or statutory basis for such an award.
There is no indication in the file of any contractual relationship between the plaintiff and the defendant.
A. THE LAW OF THE CASE
"The law of the case doctrine expresses the practice of judges generally to refuse to reopen what [already] has been decided . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Internal quotation marks omitted.) Brown Brown, Inc. v. Blumenthal, 288 Conn. 646, 656 (2008). Nevertheless, "[a] judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he [or she] has the same right to reconsider the question as if he [or she] had himself [or herself] made the original decision . . . This principle has been frequently applied to an earlier ruling during the pleading stage of a case . . . According to the generally accepted view, one judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law." (Internal quotation marks omitted.) Id. Indeed, the Appellate Court has expressly determined that a judge is not bound to follow the law of the case doctrine when appellate attorneys fees are at issue. McCarthy v. McCarthy, 55 Conn.App. 326, 333, (1999), cert. denied, 252 Conn. 923 (2000) (stating that "[w]e are not persuaded that the doctrine of the law of the case was properly invoked by the trial court in this case . . . [because] [n]o statute, rule of practice or appellate decision precludes a party from filing more than one motion for appellate counsel fees"). As the Appellate Court noted in its 2010 decision, Judge Mintz's ruling did not allow it "to determine whether and to what extent the award [of attorneys fees] was made under one or another or all three of the enumerated statutes authorizing fees." Moasser v. Becker, supra, 121 Conn.App. 596. Under these circumstances, the court does not feel bound by Judge Mintz's statement regarding future attorneys fees. Accordingly, the court will independently determine whether there is any basis for the plaintiff's claims for additional attorneys fees.
B. GENERAL STATUTES § 52-400c
The plaintiff argues that General Statutes § 52-400c furnishes a basis for the award of additional attorneys fees. That statute provides: "In the discretion of the court, a reasonable attorneys fee may be allowed to the prevailing party (1) for counsel at any contempt hearing reasonable and necessary for the enforcement of a court order, pursuant to Section 52-256b, (2) for counsel at any discovery hearing reasonable and necessary for the enforcement of disclosure rights, and (3) for counsel at any other hearing that is reasonable and necessary for the enforcement of rights pursuant to a postjudgment procedure that is held on a claim or defense that the court determines was made for the purpose of harassment or solely for the purpose of delay."
At oral argument on his motion, the plaintiff's counsel made it clear that his claim for attorneys fees pursuant to § 52-400c was limited to a claim that the defendant's most recent appeal was taken "solely for the purpose of delay." In support of that claim, the plaintiff called the defendant's counsel, Attorney Mark Katz, as a witness. Without asserting any claims of privilege, Attorney Katz testified concerning the appeal and, in particular, the brief that he filed with the Appellate Court in support of the appeal. Attorney Katz testified that he believed that the Superior Court, Mintz, J., was incorrect in awarding attorneys fees in the amount of $62,916.75 to the plaintiff without making findings as to the basis of the award. He also testified that he spent approximately sixteen to twenty hours in prosecuting the appeal, including time spent in oral argument before the Appellate Court. Attorney Katz further testified that he did not charge his client for the time spent on the appeal.
The plaintiff introduced the defendant's appellate brief into evidence. (Ex. 1.) The brief reflected the following claims on appeal: (1) "The Court (Mintz, J.) erred by interpreting the remand order from the Appellate Court as an order that attorneys fees were mandated"; (2) "The Court (Mintz, J.) erred by awarding foreclosure fees against Judith Becker, whose interest in the subject property was not foreclosed"; (3) The Court (Mintz, J.) erred by awarding fees pursuant to §§ 52-350f and 52-400c of the Connecticut General Statutes"; (4) "The Court (Mintz, J.) erred in its calculation of the attorneys fees which it awarded." The plaintiff also introduced into evidence the responsive brief filed on behalf of the plaintiff in the Appellate Court. (Ex. 2.)
In the defendant's appeal, the Appellate Court found that the Superior Court did not improperly treat the prior remand from the Appellate Court as a direction to award attorneys fees and did not improperly award fees against a party whose interests in the real estate were not foreclosed. The court did not consider the defendant's remaining claims of error and found that the defendant's failure to request an articulation from the trial court presented the Appellate Court with an inadequate record to review those claims. Moasser v. Becker, supra, 121 Conn.App. 596.
There is nothing in the context in which the defendant filed her appeal to suggest that the appeal was merely pretextual or frivolous. Title and possession of the residential real estate had passed to the successful bidder at the foreclosure sale in 2004, and the proceeds of sale were deposited with the clerk of the court at that time. On January 8, 2007, by agreement of the parties, the funds remaining in the clerk's hands were placed in an interest bearing account with counsel for both parties acting as escrow agents. These circumstances do not suggest any motive for filing the appeal other than the defendant's belief that the trial court had acted erroneously when it awarded additional counsel fees to the plaintiff. To a certain extent, the opinion of the Appellate Court supports the bona fide character of the appeal. Even after careful review of the record and the trial court's decision, the Appellate Court was "unable to determine whether and to what extent the award was made under one or another or all of the enumerated statutes authorizing fees." Moasser v. Becker, supra, 121 Conn.App. 596. The defendant's appeal did not fail because of underlying lack of merit; it failed because of her counsel's failure to obtain an articulation from the court stating the authority under which it awarded the fees. This court concludes that the plaintiff has failed to demonstrate that the defendant's appeal was taken "solely for the purpose of delay." Consequently, the court finds that the plaintiff is not entitled to an award of attorneys fees under § 52-400c.
C. GENERAL STATUTES § 52-249
The final basis on which the plaintiff claims to be entitled to additional attorneys fees is General Statutes § 52-249(a). That statute 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 attorneys 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." Despite this patently ambiguous language, our Appellate Court has stated that "General Statutes § 52-249(a) succinctly and unambiguously provides for the allowance of attorneys fees in actions for foreclosure of mortgages or liens." A. Secondino Son, Inc. v. LoRicco, 19 Conn.App. 8, 15-16 (1989). In that case, the Appellate Court did not engage in a meaningful analysis of the language of § 52-249(a). Instead, the court based its holding on the principle that "[a] statute does not become ambiguous solely because the parties disagree as to its meaning." (Internal quotation marks omitted.) Id., 16.
In a later case, Original Grasso Construction Co. v. Shepherd, 70 Conn.App. 404, cert. denied, 261 Conn. 932 (2002), the Appellate Court apparently recognized that § 52-249(a) did not unambiguously provide for attorneys fees in prosecuting an underlying claim. In that case, the plaintiff sought to foreclose a mechanic's lien. The court accepted a report from an attorney trial referee that found for the plaintiff on its claim, but denied any attorneys fees because of the failure of the plaintiff's counsel to request those fees in the hearings held by the attorney trial referee. The court found that an award of attorneys fees under § 52-249(a) was an issue of law, and, therefore, beyond the authority of an attorney trial referee. The court found that the trial court was in error in determining that the report of the attorney trial referee precluded the plaintiff from asserting a claim for attorneys fees under § 52-249(a). As a result, the Appellate Court reversed the trial court and remanded the matter "for determination of whether and to what extent the plaintiff may be entitled to attorneys fees pursuant to § 52-249 . . ." (Emphasis added.) Id., 419.
An approach to the interpretation of statutes is now mandated by General Statutes § 1-2z, enacted as Public Act 03-154, which provides that: "The meaning of a statute shall, in the first instance be ascertained from 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, extratextual evidence of the meaning of the statute shall not be considered."
Since the enactment of § 1-2z, there have not been any appellate cases that have applied the analysis required by that statute to § 52-249(a). Nevertheless, § 52-249(a) has been examined by several Superior Court judges, resulting in a split of authority.
In AA Mason, LLC v. Montagno Construction, Inc., 49 Conn.Sup. 405 [ 39 Conn. L. Rptr. 339] (2005), the court, Satter, J.T.R., determined that "[t]here is no provision in [§ 52-249] that attorneys fees are to be allowed for the trial of the underlying action." Id., 411. In AA Mason, the court examined the legislative history of § 52-249 and found that it was not particularly illuminating on this issue. Accordingly, the court determined that the meaning of the phrase "form of judgment" is limited "to either a strict foreclosure, when the court sets a law day as to the time for redemption by the owner of the equity or subsequent lienors, or a foreclosure by sale when the court orders the property sold by committed the proceeds of the sale are distributed among the mortgagee, subsequent lien owners and the owner, as determined by law." Id.; see also MJM Landscaping, Inc. v. Lorent, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0174738 (April 4, 2002, Karazin, J.) ( 31 Conn. L. Rptr. 629, 629) (holding that the "statutory language [of § 52-249] spells out the two circumstances wherein attorneys fees may be obtained and the underlying breach of contact action is not one . . . Accordingly, the attorneys fees are denied as not provided for by law"). The AA Mason court further stated that § 52-249(a) "plainly provides for attorneys fees in a foreclosure action when there has been a hearing as to the form of the judgment or the limitation of time for redemption." Id., 412. In its decision denying attorneys fees, the court found that, in the case before it, there had not been "a hearing as to the form of judgment or the limitation of time for redemption . . ." Id. Such a hearing was not necessary because a bond had been substituted for the mechanic's lien, which was the subject of the foreclosure action. The court did not have occasion to address the remaining language of § 52-249(a), which limits fees to the amount to which plaintiff would be entitled "had [there] been a hearing on an issue of fact."
In contrast, in Northeast Tank Environmental Services, Inc. v. TA Operating Corp., Superior Court, judicial district of New Britain, Docket No. CV 06 5001541 (August 8, 2008, Domnarski, J.) ( 46 Conn. L. Rptr. 124), the court concluded that pursuant to "language used by our Appellate and Supreme Courts . . . General Statutes § 52-249 authorizes the allowance of attorneys fees in connection with the underlying action." Id., 125. In reaching this conclusion, Judge Domnarski quoted language from the Original Grasso case, in which the Appellate Court stated that "the court in the foreclosure action must determine whether a party is entitled to attorneys fees pursuant to § 52-249 that were incurred in the litigation of the underlying action." (Emphasis added.) Original Grasso Construction Co. v. Shepherd, supra, 70 Conn.App. 419.
Pursuant to the mandate of § 1-2z, the court is required to ascertain the meaning of § 52-249(a) "from the text of the statute itself and its relationship to other statutes." The text of § 52-249(a) allows plaintiffs in foreclosure actions to recover "the same costs, including a reasonable attorneys fee, as if there had been a hearing on an issue of fact." The "as if" language seemingly manifests a legislative intent to allow plaintiffs in foreclosure actions statutory costs and fees when there has "been a hearing on an issue of fact." The language of the statute itself is not so clear that its meaning can be discerned without reference to other statutes.
There are two other provisions of the General Statutes relevant to the meaning of § 52-249(a). The first is General Statutes § 52-257(a), which addresses the issue of "Fees of parties in civil actions." That statute provides in relevant part: "in civil actions in which the matter in demand is not less than fifteen thousand dollars . . . [t]he prevailing party in any such civil action shall receive, by way of indemnity, the following sums . . . (2) for the trial of an issue of law or fact, seventy-five dollars, but if more than one issue of fact is tried at one time, only one trial fee shall be allowed; and (3) in difficult or extraordinary cases in the Superior Court, where a defense has been interposed, a further allowance, in the discretion of the court, not to exceed two hundred dollars." This statute appears to be the only one to address fees and costs for a prevailing party in the absence of an express authorization for an award of attorneys fees.
Cf. General Statutes § 31-72 (authorizing an employee or labor organization to recover reasonable attorneys fees in an action to recover wages due); General Statutes § 35-53(b) (allowing the court to award reasonable attorneys fees for "willful and malicious misappropriation" under the Trade Secrets Act); General Statutes § 42-110g(d) ("In any action brought by a person under [CUTPA], the court may award, to the plaintiff . . . reasonable attorneys fees based on the work reasonably performed by an attorney . . ."); General Statutes § 46a-104 (authorizing attorneys fees in an employment discrimination case); General Statutes § 49-41a(c) ("In the event that such general contractor or subcontractor refuses to place such funds in escrow, and the party making a claim against it under this section is found to have substantially performed its work in accordance with the terms of its employment in any arbitration or litigation to determine the validity of such claim, then such general contractor or subcontractor shall pay the attorneys fees of such party"); General Statutes § 52-192a(c) (allowing the plaintiff reasonable attorneys fees not to exceed $350 for the defendant's failure to accept an offer of compromise); General Statutes § 52-240a ("If the court determines that the claim or defense is frivolous, the court may award reasonable attorneys fees to the prevailing party in a products liability action") and General Statutes § 52-400d (allowing attorneys fees for claims or defenses made "solely for the purposes of delay").
As Judge Satter notes in AA Mason, supra, 49 Conn.Sup. 405, "[t]he predecessor to § 52-249 was an act originally passed in the 1895 session of the legislature providing that in an action of foreclosure of any mortgage or lien when there has been a hearing as to the form of judgment or limitation of time for redemption, [the plaintiff in a foreclosure action] shall be allowed the same costs as if there had been a hearing on the issue of fact. Public Acts 1895, c. CLXV, § 1. The statute was amended in 1984 to provide for the allowance of a `reasonable attorneys fee.' The house debate on the bill in the General Assembly indicated that `the amendment is designed to insure that 15% does not become the amount that is necessarily given but only that which is fair in any particular foreclosure action.' 27 H.R. Proc. Pt. 9, 1984 Sess., p. 3125. In 1999, the statute was amended to provide the same costs and fees shall be recoverable in a foreclosure of a mortgage or mechanic's lien as in an action upon a bond which has been substituted for a mechanic's lien. General Statutes (Rev. to 1999) § 99-153, § 8." Id., 410. "The legislative history sheds no light on the meaning of the phrase `hearing as to the form of judgment or the limitation of time for redemption.' This court infers that in a foreclosure action the form of judgment relates to either a strict foreclosure, when the court sets a law day as to the time for redemption by the owner of the equity or subsequent lienors, or a foreclosure by sale when the court orders the property sold by committee and the proceeds of the sale are distributed among the mortgagee, subsequent lien owners and the owner, as determined by law. There is no provision in the statute that attorneys fees are to be allowed for the trial of the underlying action." Id., 411.
In 1895, the date of the original enactment of § 52-249(a), the General Statutes already included the predecessor to § 52-257(a). That statute was enacted in the 1881 session of the legislature as Public Acts 1881, c. XCVIII, §§ 2 and 3. In relevant part, § 2 read as follows: "There may be allowed to the prevailing party in any civil action in the superior court, court of common pleas, district court, or city court, by way of indemnity, the following sums: for all proceedings before trial, ten dollars; for the trial of an issue of law or fact, fifteen dollars; and if more than one issue of fact shall be tried at one time, only one trial fee shall be allowed . . ."
Section 3 provided: "In difficult or extraordinary cases in the superior court, where a defense has been interposed, said court may also, in its discretion, make a further allowance to the prevailing party of a sum not exceeding one hundred dollars." Except for the references to no longer existing courts and the increases in fees allowed, these provisions are identical to those now found in § 52-257(a).
Section 5 of the same 1881 public act provided: "Nothing in this act contained shall be construed to interfere with the discretion of the court, in taxing costs in equity." In the view of the court, this provision explains the later enactment of the predecessor of § 52-249(a). After passage of that act in 1895, there could no longer be any doubt that a creditor pursuing the equitable remedy of foreclosure of his lien would be entitled to the same fees as a creditor whose action was limited to legal claims.
When considered in light of § 52-257(a), it appears that the phrase "the same costs, including a reasonable attorneys fee, as if there had been a hearing on an issue of fact" used in § 52-249(a) must necessarily refer to the costs provided under § 52-257(a).
The second provision of the General Statutes that might shed light on the meaning of § 52-249(a) is General Statutes § 52-249a, which was enacted as Public Act 07-120. That statute provides: "A plaintiff who prevails in any action upon a bond which has been substituted for a mechanic's lien shall be allowed costs and a reasonable attorneys fee." In DuBaldo Electric, LLC v. Montagno Construction, Inc., 119 Conn.App. 423 (2010), the Appellate Court was called upon to determine whether § 52-249a had retroactive effect. In its efforts to address that issue, the court considered whether the statute had been intended to change the law or to clarify the previously existing law. The court stated: "We next consider whether the legislature intended § 52-249a to substantively change the law or to clarify its original intent of an earlier stature. [A] factor [that] we have deemed to be significant in determining the clarifying character of legislation is that the legislation was enacted in direct response to a judicial decision that the legislature deemed incorrect . . ." (Internal quotation marks omitted.) Id., 450.
"Admittedly, the legislative history surrounding § 52-249a is murky. Certain portions of the legislative history support the claims of each party. In support of DuBaldo's contention that § 52-249a was enacted in direct response to AA Mason, LLC v. Montagno Construction, Inc., 49 Conn.Sup. 405 . . . (2005), a case in which the court found that a right to attorneys fees in an action on a bond did not exist under § 52-249(a), are the comments of Representative Gerald M. Fox III. He stated: `There are certain situations where a mechanic's lien may be substituted with a bond, and there have been interpretations by the courts that when a bond is substituted that the provision allowing for costs and reasonable attorneys fees no longer applies. In order to clarify the way that that has been interpreted, this bill was presented to us.' 50 H.R. Proc, Pt. 7, 2007 Sess., p. 2305. Representative Fox added: `What this bill did was to clarify the situation in that a plaintiff would also be allowed to recover costs and reasonable attorneys fees with respect to an action when a surety bond has been substituted.' 50 H.R. Proc, Pt. 16, 2007 Sess., p. 5199. Notwithstanding those statements, the legislative history supports the defendants' assertion that § 52-249a substantively changed the law. In particular, Senator Andrew J. McDonald's comments indicate that the legislature understood that it was creating a new right that did not previously exist. Senator McDonald noted: `[I]t's the case that you can bring an action to foreclose on a mechanic's lien, and when you do so, our statutes allow for a plaintiff to recover a reasonable attorneys fee. It's also the case that when you substitute a bond for a mechanic's lien, if you have to bring an action on the bond, it does not include any provision for the recovery of an attorneys fee. And this bill is intending to bring those two processes into consideration, or synch, I should say.' 50 S. Proc., Pt. 9, 2007 Sess., pp. 2834-35. Based on the contradictory statements of Representative Fox and Senator McDonald, we are unable to conclude that § 52-249a was enacted to clarify the original intent of § 52-249(a). Cf. Oxford Tire Supply, Inc. v. Commissioner of Revenue Services, [ 253 Conn. 683 (2000)] (finding persuasive direct, unequivocal statements concerning legislation's clarifying purpose absent contradictory legislative history); Toise v. Rowe [ 243 Conn. 623 (1998)] (same). The legislative history of § 52-249a plainly is not a clear and unequivocal expression of intent." DuBaldo Electric, LLC v. Montagno Construction, Inc., supra, 451-52. In the absence of clear legislative intent, the Appellate Court concluded that § 52-249a was intended to create a new substantive right and therefore would be applied only prospectively. Id., 453.
In § 52-249a, the legislature clearly provided that the holder of a mechanic's lien that is released following the substitution of a bond is entitled to "costs and a reasonable attorneys fee" following successful prosecution of his claim. The statute dispenses with the requirement that there be "a hearing as to the form of judgment or the limitation of time for redemption." In addition, § 52-249a does not limit reasonable attorneys fees to those incurred "as if there had been a hearing on an issue of fact." When it enacted § 52-249a, the legislature took no action to amend or clarify § 52-249(a). Accordingly, as the law now stands, a holder of a mechanic's lien who successfully prosecutes a foreclosure action is entitled to limited attorneys fees while a similar claimant who had a bond substituted for his mechanic's lien is entitled only to the limited attorneys fees "as if there had been a hearing on an issue of fact." Under § 52-257(a)(2) and (3), the maximum amount the court can award "for the trial of an issue of law or fact" is seventy-five dollars, plus "in difficult or extraordinary cases in the Superior Court, where a defense has been interposed . . . a further allowance . . . not to exceed two hundred dollars." Under this analysis, as mandated by § 1-2z, an award of attorneys fees would, by the plain and unambiguous language of these statutes, be limited to $275.
The final step in the analysis required under § 1-2z is to determine whether the result is either "absurd or unworkable." In most cases, Connecticut adheres to the "American Rule," under which each party bears his own litigation expenses. In that context, a nominal award of $275 by way of "fees" to the prevailing party under §§ 52-249(a) and 52-257(a) would not yield either "absurd or unworkable results."
"The general rule of law known as the American rule is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception . . . Connecticut adheres to the American rule." (Citations omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 517 (2009).
Nevertheless, despite the plain language of these statutes, the Appellate Court held in a recent case that a plaintiff can obtain appellate attorneys fees pursuant to § 52-249. Specifically, the Appellate Court stated that "we conclude that because § 52-249 provides for attorneys fees in a foreclosure `action' and does not restrict the award to fees incurred at trial, the [trial] court had the authority to award appellate attorneys fees pursuant to § 52-249." (Emphasis added.) Gagne v. Vaccaro, 118 Conn.App. 367, 371 (2009).
Consequently, even though it appears to be contrary to the plain language of the statute, our Appellate Court has interpreted the scope of § 52-249(a) as authorizing a trial court to award a plaintiff in a foreclosure action all reasonable attorneys fees incurred in the litigation of the underlying action and resulting appeals. Under these circumstances, this court is constrained to find that despite the limited language of the statute, that § 52-249(a) authorizes an award to the plaintiff of reasonable attorneys fees incurred during the course of the entire case, including an appeal regarding the issue of attorneys fees.
In her brief, the defendant Judith Becker argues that she should not be subject to attorneys fees under § 52-249(a) because she was not a named defendant at the commencement of the foreclosure case and she only intervened to protect her interests in the subject property. The defendant fails to cite any authority for this position. Although Judith Becker was not originally a defendant at the beginning of this case, she intervened as a defendant and is the party who continues to pursue appeals. Section 52-249 does not limit an award of fees against only the original defendants in a foreclosure action. Accordingly, the court rejects the defendant's argument. See, e.g., Butterworth Scheck, Inc. v. Vanschaick, Superior Court, judicial district of Fairfield, Docket No. CV 07 5009617 (July 16, 2009, Arnold, J.) (ordering, in a case brought to foreclose a mechanic's lien, that a party subsequently added to the case should pay the plaintiff attorneys fees).
Moreover, the defendant's argument on this issue has already been rejected by the Appellate Court in this very case. In her latest appeal, the defendant argued that the court had "improperly awarded fees against a party whose interest in the subject real property was not foreclosed . . ." Moasser v. Becker, supra, 121 Conn.App. 594. Although the Appellate Court did not expressly examine this issue because the defendant did not request an articulation of the trial court's oral decision, the Appellate Court did conclude that "[a]fter review of the record and briefs and our consideration of the arguments of counsel, we find no abuse of discretion on the part of the court in its award of postjudgment attorneys fees." Id., 596.
In his Motion for Interest, Attorneys Fees and Costs dated September 28, 2010 (#324), the plaintiff's attorney claims to have spent a total of 87.5 hours of time defending the defendant's most recent appeal. He bills this time at $350 an hour, for a total of $30,625. In his post-hearing brief dated November 21, 2010, the plaintiff's attorney claims to have spent an additional 23.8 hours since September 28, 2010, and requests an additional award of attorneys fees in the amount of $8,330. "[T]he initial estimate of a reasonable attorneys fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate . . . The courts may then adjust this lodestar calculation by other factors . . . For guidance in adjusting attorneys fees, Connecticut courts have adopted the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). The Johnson factors are (1) the time and labor required, (2) the novelty and difficulty of the questions, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee for similar work in the community, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation and ability of the attorneys, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client and (12) awards in similar cases." (Citation omitted; internal quotation marks omitted.) Ernst v. Deere Co., 92 Conn.App. 572, 576 (2005). "[T]hat list of factors is not . . . exclusive. The court may assess the reasonableness of the fees requested using any number of factors . . ." Id., 576 n. 3. "[T]he amount of attorneys fees to be awarded rests in the sound discretion of the trial court and will not be disturbed on appeal unless the trial court has abused its discretion." (Internal quotation marks omitted.) The Land Group, Inc. v. Palmieri, 123 Conn.App. 84, 98 (2010).
At the hearing before this court, the plaintiff's counsel's adversary, Attorney Katz, testified that he spent approximately sixteen to twenty hours prosecuting this appeal. Given the limited nature of the issues presented on appeal and the depth of the legal analysis set forth in the appellant's brief, it would appear that the plaintiff's counsel should not have expended more than twenty-four hours in defending the appeal, including the time spent in argument before the Appellate Court. Accordingly, the court finds that the number of hours purportedly spent by the plaintiff's counsel defending this appeal is grossly excessive. Furthermore, the court also finds that the rate of $350 an hour is excessive and that $225 an hour is a more appropriate rate. Given the nature of this case, and after considering the other lodestar factors, the court determines that, at the most, the plaintiff's attorney is entitled to $5,400 in fees for defending the appeal, which would represent approximately twenty-four hours at $225 an hour.
That rate was used by the court (Mintz, J.) in awarding fees to plaintiff's counsel on February 9, 2009. The award was approved by the Appellate Court in Moasser v. Becker, 121 Conn.App. 593 (2010).
The court also finds that the 23.8 hours claimed for post-appeal legal work is also excessive. The court finds that, at most, the plaintiff's counsel is entitled to be compensated for 16 hours of time for his efforts. Accordingly, the court will award an additional $3,600 for such work. This results in a total award of additional attorneys fees of $9,000. The court notes that this will result in the plaintiff's counsel receiving fees for defending fees awarded to him. Plaintiff's counsel should be forewarned that, if subsequent proceedings in the case require plaintiff's counsel to expend additional time on this matter, an award of additional fees (for defending or obtaining additional fees for defending fees) might well be viewed in an unfavorable light.
POSTJUDGMENT INTEREST
In addition to attorneys fees, the plaintiff also seeks an award of postjudgment interest on the prior awards of damages and attorneys fees. Specifically, the plaintiff's motion states that "an award would properly include post-judgment interest from the 1989 date of the federal court judgments. In assessing the debt due plaintiff, such interest has already been awarded through December 12, 2000 (Attorney Trial Referee's reports and January 12, 2002 judgment thereon). This court should update that calculation and award." The plaintiff cites to General Statutes § 52-350f as the authority for the court to allow postjudgment interest. Section 52-350f provides: "A money judgment may be enforced against any property of the judgment debtor unless the property is exempt from application to the satisfaction of the judgment under Section 52-352a, 52-352b, 52-352d or 52-361a or any other provision of the general statutes or federal law. The money judgment may be enforced, by execution or by foreclosure of a real property lien, to the amount of the money judgment with (1) all statutory costs and fees as provided by the general statutes, (2) interest as provided by chapter 673 on the money judgment and on the costs incurred in obtaining the judgment, and (3) any attorneys fees allowed pursuant to Section 52-400c." The Appellate Court has clearly held that an award of postjudgment interest under this statute is discretionary. Urich v. Fish, 112 Conn.App. 837, 843-44, cert. denied, 292 Conn. 909 (2009).
General Statutes § 37-3a also provides in relevant part that "interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings . . . including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable." (Emphasis added.) "[A]n award of postjudgment interest is authorized by § 37-3a . . . This statute has been construed to make the allowance of interest depend upon whether the detention of the money is or is not wrongful under the circumstances . . . The allowance of interest as an element of damages [under § 37-3a] is, thus, primarily an equitable determination and a matter lying within the discretion of the trial court . . . [Connecticut's appellate courts have] seldom found an abuse of discretion in the determination by a trial court of whether a detention of money was wrongful." (Citations omitted; internal quotation marks omitted.) Urich v. Fish, supra, 112 Conn.App. 843-44. Awards of postjudment interest "shall be calculated from the date of the final judgment to the date of payment." TDS Painting Restoration, Inc. v. Copper Beech Farm, Inc., 73 Conn.App. 492, 512, cert. denied, 262 Conn. 925 (2002).
In his January 14, 2002 memorandum of decision ordering a foreclosure by sale, Judge Lewis did not specifically order that the plaintiff was entitled to postjudgment interest on any prior awards of damages and attorneys fees. The plaintiff also has not demonstrated that any of the subsequent rulings in this case have expressly authorized such postjudgment interest.
In this case, the funds resulting from the sale of the subject premises were first deposited with the clerk of the court and thereafter, on January 8, 2007, placed in an interest bearing escrow account with both the plaintiff's counsel and the defendant's counsel as signatories. Counsel for both parties failed to document the agreement they reached regarding the disposition of funds placed in escrow and the interest earned thereon. As postjudgment interest is discretionary in Connecticut, the court finds that the plaintiff should receive a proportionate share of the interest earned on the escrow account and no more. The court finds that the plaintiff has failed to show that the defendant detained any funds from the plaintiff after they became due. Accordingly, an award of interest under § 37-3a or § 52-350f is not appropriate.
The court directs the parties to prepare an order for the disbursement of funds in accordance with this memorandum of decision. In the event that the parties are unable to agree on wording of the order they are directed to submit drafts of the proposed order for the court's consideration no later than January 12, 2011.