Bacon Construction Co., Inc. v. State of Connecticut Department of Public Works (2010)

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO OPEN AND MODIFY THE JUDGMENT FOR AN ORDER OF POST-JUDGMENT INTEREST, COSTS AND ATTORNEYS FEES

FACTS AND PROCEDURE:

The plaintiff (hereinafter also “Bacon”) had a dispute with the State of Connecticut Department of Public Works (hereinafter also “State”) regarding a construction project.   Bacon issued a demand for arbitration against the State before the American Arbitration Association.   On January 25, 2008 the Arbitrator, Christopher H. Little, made an award which in pertinent part is hereby set forth:

The State shall pay to Bacon the sum of Four Hundred Thirty Four thousand nine hundred seventy four dollars and thirty four cents ($434,974.34).

Per diem interest is to assessed after January 27, 2008 at the following rate:

Retainage-$22.69;  Extra Work-$7.01;  and Loss of Productivity Claim, Stratton Claim and Winter Conditions Claim-$39.19. (This totals $68.89 per diem.)

On April 22, 2008 this Court denied the State's motion to dismiss, and on May 8, 2008 this Court denied the State's application to vacate and granted Bacon's application to confirm, thereby confirming the arbitration award.   This Court's order was then affirmed by the Connecticut Supreme Court on February 9, 2010.

Bacon has now requested that this Court modify the award and order the payment of the $434,974.34 as well as per diem interest in the amount of $68.88 from January 28, 2008 to and including February 24, 2008 in the amount of $1,860.03 and statutory interest at the rate of 10% per year from February 25, 2008 to the date of the current motion (March 1, 2010) for a total of $87,965.28.   Accordingly, Bacon requests the following in addition to the basic award:

1. Interest from the date of the award January 28, 2008 to and including February 24, 2008 in the amount of $1,860.03.

2. Post-judgment interest at the rate of 10% per annum from February 25, 2008 to March 1, 2010 inclusive pursuant to C.G.S. § 37-3a;

3. Costs in the amount of $300 incurred by Bacon in the appeal pursuant to C.G.S. § 52-257(d);  and

4. Attorneys fees in the amount of $1,000 for bringing this motion pursuant to C.G.S. § 52-400c.   The plaintiff and defendant each filed briefs regarding these issues, and a hearing was held on April 14, 2010 before this Court.

ISSUES AND FINDINGS:

1. Under the case of State v. Chapman, 176 Conn. 362, 366 (1978) Bacon is not entitled to recover costs against the State.   The specific language is as follows:

“In the absence of a specific statutory provision allowing the taxation of costs against the state, this Court is required to adhere to the widely recognized principle that statutes relating to costs and authorizing the imposition of costs in various kinds of actions or proceedings, or under various prescribed circumstances, which do not in express terms mention the state, are not enough to authorize imposing costs against the state (citations omitted).   We conclude that the general language of § 52-257 governing taxable costs does not apply to the state.”

2. As for attorneys fees claimed under C.G.S. § 52-400c only paragraph (3) could be construed to apply in this case and it states:  “for counsel at any other hearing that is reasonable and necessary for the enforcement of rights pursuant to a post judgment 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.”  (Emphasis added.)   This Court does not find that the State acted for the purpose of harassment or solely for the purpose of delay.   The attorneys fees request is, therefore, denied.

3. As for the interest claimed under C.G.S. § 37-3a, the Appellate Court stated in Foley v. Huntington Co., 42 Conn.App. 712, 738 (1996) the following “Thus, the determination of whether interest pursuant to § 37-3a should be awarded is a question for the trier of fact.”   The trier of fact in this case is the arbitrator.

On page 16 of the arbitrator's award he concludes the following:  “Per diem interest is to be assessed after January 27, 2008 at the following rate:  Retainage-$22.69;  Extra Work-$7.01;  and Loss of Productivity Claim, Stratton Claim and Winter Conditions Claim-$39.19.” The total per diem interest, which the State does not dispute, is $68.89.   Plaintiff claims that $68.89 should be paid from January 28, 2008 until the arbitration award was required to be paid on February 24, 2008 in the amount of $18,060.03 plus interest post-judgment at 10% per annum.   The plaintiff claims that the arbitration award is silent after February 24, 2008 as to interest.   The Court disagrees.

The Court is reading the award as it is set forth which is “per diem interest is to be assessed after January 27, 2008 ․” This is very clear to the Court and does not require any interpretation.   He put no time limit on it.   Accordingly, the interest assessed by the arbitrator is $68.89 per diem from January 28, 2008 to the date of this hearing on April 14, 2010 which is in the amount of $55,594.23, and per diem interest of $68.89 thereafter until the total is paid in full.

Further, this Court also finds that the monies due the plaintiff were not wrongfully withheld as described under § 37a-3a.   It was an honest dispute between the parties.

CONCLUSION:

The Court grants the plaintiff's motion dated March 1, 2010 to open and modify the judgment for an order of interest, but denies the motion for costs and attorneys fees.   The total award is hereby modified as follows:

Total award by arbitrator $434,974.34

Interest $ 55,594.23

Total $490,568.57

The judgment is so modified in favor of the plaintiff and is to be paid immediately.¹

Rittenband, JTR

FOOTNOTES

FN1. The decision by Shortall, J. is now irrelevant because it was in regard to a prejudgment remedy which is not longer applicable because judgment has been rendered, even by the State Supreme Court..  FN1. The decision by Shortall, J. is now irrelevant because it was in regard to a prejudgment remedy which is not longer applicable because judgment has been rendered, even by the State Supreme Court.

Rittenband, Richard M., J.T.R.