Opinion
No. 01 0183763 S
September 7, 2004
MEMORANDUM OF DECISION
Presently before the court is the plaintiff's motion for statutory interest and attorneys fees (244.00) dated August 3, 2004. In that motion the plaintiff claims: 1) that on June 7, 2002 it filed an offer of judgment directed to defendant Modugno, Modugno Modugno, LLC; 2) that the offer was filed within eighteen months of the filing of the complaint; 3) that the offer was not accepted; 4) that on July 30, 2004 the jury returned a verdict in favor of the plaintiff against the defendant, Modugno, Modugno Modugno, LLC, in the amount of $14,476.62; and that pursuant to Practice Book § 17-18, the plaintiff is entitled to interest at the rate of 12% and attorneys fees of $350.00.
"After trial the judicial authority shall examine the record to determine whether the plaintiff made an "offer of judgment" which the defendant failed to accept. If the judicial authority ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in that plaintiff's offer of judgment," the judicial authority shall add to the amount so recovered 12 percent annual interest on said amount, computed as provided in General Statutes § 52-192a, may award reasonable attorneys fees in an amount not to exceed $350, and shall render judgment accordingly. Nothing in this section shall be interpreted to abrogate the contractual rights of any party concerning the recovery of attorneys fees in accordance with the provisions of any written contract between the parties to the action."
In accordance with this provision, when the plaintiff's motion was heard on August 18, 2004, the court conducted an examination of the file and found a pleading dated June 6, 2002 entitled "Offer of Judgment Directed to Modugno, Modugno Modugno, LLC." That pleading offered to stipulate to judgment in the amount of $10,000 " within 30 days of the above-stated date, without costs." (Emphasis supplied.) The court questioned whether an offer of judgment had, in fact, been made. The court noted that Public Act 01-71 had amended General Statutes § 52-192a, effective October 1, 2001, extending the period for acceptance of offers of judgment from thirty days to sixty days. The parties were directed to file briefs addressing the question as to whether the June 6, 2002 pleading constituted an "offer of judgment" within the meaning of Practice Book § 17-18 and General Statutes § 52-192a.
The provisions of Practice Book §§ 17-15 to 17-17 track the provisions of General Statutes § 52-192a(a) nearly word for word. The provisions of Practice Book § 17-18 are virtually identical to those of General Statutes § 52-192a(b). While Public Act 01-71 became effective on October 1, 2001, the amendments to Practice Book §§ 17-15 to 17-17 tracking the provisions of Public Act 01-71 were not adopted until June 24, 2002 and did not become effective until January 1, 2003. Thus, when the plaintiff filed its offer of judgment on June 7, 2002, General Statutes § 52-192a provided for a sixty-day acceptance period while the corresponding provisions of the Practice Book still reflected a thirty-day acceptance period.
The plaintiff urges that because of the failure of the defendant to accept the offer of judgment either within thirty days or sixty days, it does not matter whether the plaintiff's offer complied with the requirements of General Statutes § 52-192a. In taking this position the plaintiff misses the point. The issue is not whether the defendant accepted the offer of judgment in a timely manner. It is whether the court can find that the record reflects that the plaintiff made an offer of judgment complying with the applicable provisions of the Practice Book or the statute. Because these provisions were in conflict on June 7, 2002, the court must first determine which provision to apply.
In Mitchell v. Mitchell, 194 Conn. 312, 324, 481 A.2d 31 (1984), the plaintiff sought to convert a legal separation into a dissolution of his marriage to the defendant. A provision of the practice book required that, in such circumstances, the moving party include in the petition a statement as to whether the parties had resumed marital relations since the separation. A requirement of the statute governing the conversions of legal separations into dissolutions which had previously required a similar statement had been dropped when the state's domestic relations laws were overhauled in 1979. In determining that the provision of the practice book was not a nullity, the court stated: "It is well settled by statutory; General Statutes 51-14(a); and decisional law; that the courts do not have the authority to enact rules governing substantive rights and remedies. Certainly, where a statute creates a substantive right, a conflicting practice book rule cannot stand It is also well settled that the courts do have the authority to prescribe rules to regulate their proceedings and facilitate the administration of justice as they deem necessary. Practice Book 472 is such a rule. The rule does not alter the statute but rather implements it by setting out the procedures one must follow to convert a legal separation into a dissolution. Further, we see no conflict between the rule and the statute." (Citations omitted; internal quotations omitted.)
Where a statute and a practice book rule are in conflict on a matter of substance, the provisions of the statute must prevail. In State v. Morrison, 39 Conn.App. 632, 665 A.2d 1372 (1995), cert. denied, 235 Conn. 939 (1995), the defendant in a criminal case argued that he was entitled to apply to the sentencing judge for a sentence reduction, notwithstanding the fact that his sentence exceeded three years. The legislature amended the statute (General Statutes § 53a-39) effective June 8, 1982 to provide that only sentences of three years or less could be modified by the sentencing judge. However the Practice Book provision was not amended to mirror the statute until October 1, 1983, thereby leaving a period of time during which the statute and the rule of practice conflicted. The defendant argued that because his crime was committed during the period of the conflict, the sentencing judge was empowered to reduce his sentence. The court held that the trial court properly denied the defendant's motion to reduce his sentence, finding that the statute took precedence over a conflicting practice book rule still allowing a sentencing judge to reduce the term of any definite sentence.
The court finds that the sixty-day provision of General Statutes § 52-192a rather than the thirty-day provision of Practice Book § 17-14 controls. Having determined the applicable time standard, the court must examine the plaintiff's pleading dated June 6, 2002 to determine whether it constitutes a "offer of judgment" under the statute.
The provisions of Practice Book § 17-14 to 17-18 track the provisions of General Statutes § 52-192a almost exactly. These provisions use the traditional contract concepts of offer and acceptance. General Statutes § 52-192a(a) describes the manner in which an offer of judgment must be made and the time limits for acceptance. General Statutes § 52-192a(b) requires the court to "examine the record to determine whether the plaintiff made an `offer of judgment' which the defendant failed to accept" and then to impose penalties in the form of interest and attorneys fees. The use of quotation marks in that section makes it clear that only offers of judgment meeting the requirements of § 52-192a(a) can trigger the imposition of such penalties. Had the plaintiff omitted the words "within 30 days of the above-stated date" from his pleading, the court would have no difficulty in determining that the pleading constituted an "offer of judgment" under the statute.
However, the inclusion of the thirty-day time limitation for acceptance in the pleading makes that term an integral part of the plaintiff's offer. A party making an offer of judgment is free to fashion the terms of the offer in any way that party sees fit. Wallerstein v. Stew Leonard's Dairy, 258 Conn. 299, 305 780 A.2d 916 (2001). Since the plaintiff's offer of judgment was, by its stated terms, not open for acceptance for the sixty-day period required by General Statutes § 52-192a, the court determines that the record does not reflect that the plaintiff made a qualifying "offer of judgment." Accordingly, the plaintiff's motion for statutory interest and attorneys fees is denied.
Having determined that a sixty-day offer period, rather than a thirty-day offer period, applies, the court need not determine whether the pleading dated June 6, 2002 (but not filed until June 7, 2002) that required acceptance "within 30 days of the above-stated date" (emphasis supplied) would, in fact, have been open for the requisite thirty days.
David R. Tobin, Judge