Town of Stratford v. Eric Castaster (2011)

RULING ON DEFENDANT'S MOTION FOR COUNSEL FEES (# 130)

Judgment entered in favor of the defendant Eric Castater (Castater) in this case, following a court trial, by way of a memorandum of decision filed on March 15, 2011.   On March 25, 2011, the defendant filed this motion seeking an order from the court directing the plaintiff Town of Stratford (town) to pay reasonable counsel fees.   The town filed an objection (# 131) on April 1, 2011.   For the reasons stated below, the court denies Castater's motion.

Connecticut follows the “American rule” which provides that “attorney's fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception.”  ACMAT Corp. v. Greater New York Mutual Ins. Co., 282 Conn. 576, 582, 923 A.2d 697 (2007).   The Connecticut Supreme Court “has recognized a bad faith exception to the American rule, which permits a court to award attorneys fees to the prevailing party on the basis of bad faith conduct of the other party or the other party's attorney.”  (Citations omitted;  internal quotation marks omitted).   Broadnax v. New Haven, 270 Conn. 133, 178–79, 851 A.2d 1113 (2004).

The substantive test for bad faith was set forth in CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 394, 685 A.2d 1108 (1996), overruled in part on other grounds, State v. Salmon, 250 Conn. 147, 155, 735 A.2d 333 (1999), and reaffirmed by the court in Maris v. McGrath, 269 Conn. 834, 846–47, 850 A.2d 133 (2004):  “To determine whether the bad faith exception applies, the court must assess whether there has been substantive bad faith as exhibited by, for example, a party's use of oppressive tactics or its wilful violations of court orders;  [t]he appropriate focus for the court ․ is the conduct of the party in instigating or maintaining the litigation.”  (Emphasis supplied.)   “[T]he court must take into account whether the party acted in good or bad faith ․ there must be clear evidence that the party's conduct was entirely without color, and there must be a high degree of specificity in the factual findings of the trial court.”  Id., 848.

“Whether a claim is colorable, for purposes of the bad-faith exception, is a matter of whether a reasonable attorney could have concluded that facts supporting the claim might be established, not whether such facts had been established.”  (Emphasis in original, citation omitted, quotation marks omitted.)  CFM of Connecticut, Inc. v. Chowdhury, supra, 239 Conn. 395.   In analyzing the decision of counsel or a party to maintain or pursue litigation, and the basis for a party's conclusion that it reasonably could establish its claims based on the known facts, the court must consider the likelihood of “honest mistakes, recollections and disagreements of those facts.”  Maris v. McGrath, supra, 269 Conn. 847.

In his motion, Castater maintains that the town's action was “legally frivolous” and brought for purposes of harassment.   Castater also argues that the town failed to present “substantial evidence” in support of its claims against him.   In regard to the latter claim, Castater misconstrues the court's decision in his favor.   Connecticut's liberal pleading policy allows parties to plead alternative, and even inconsistent, theories of liability.  Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985).   Thus, it is not uncommon for a plaintiff's proof to fail with respect to one or more elements of a cause of action.   The town presented its evidence and its legal arguments, Castater contested those claims and the court made both factual and legal findings.¹  Both sides made arguments in good faith to the court regarding the applicability of the law to the facts proven.   See Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 255, 828 A.2d 64 (2003) (“an action is frivolous ․ if the lawyer is unable ․ to make a good faith argument on the merits” (internal quotation marks omitted)).

The court concludes that the town's case against Castater was not frivolous.   Consequently, Castater has failed to demonstrate that the substantive test for the bad faith exception to the American rule has been met under the circumstances of this case.   The court concludes that the town had colorable claims to make in this lawsuit.   While Castater maintains that the town's objection to his request for permission to file a motion for summary judgment and his request to amend his answer, as well as its unwillingness to engage in any form of alternate dispute resolution, rise to the level of bad faith, the court finds these arguments unpersuasive.   Castater's motion for permission to file a motion for summary judgment was reviewed and denied by the court.   As to the objection to Castater's request for leave to amend, it was not claimed for decision ² by either side when it printed on the short calendar on October 18, 2010 and the town chose not to pursue it.   The town was under no legal obligation to resolve its claims against Castater through an alternative dispute resolution process.

Castaster has argued alternatively that he is entitled to attorneys fees by relying on the language in General Statutes § 31–72 which provides for the recovery of attorneys fees in actions brought by an employee to recover unpaid fringe benefits due upon termination pursuant to the provisions of General Statutes § 31–76k.   Here, however, Castater was paid his fringe benefits upon termination and did not have to file suit to collect them so § 31–72 is inapplicable.   Statutes providing for the recovery of attorneys fees are in derogation of the common law and are strictly construed.  Fennelly v. Norton, 294 Conn. 484, 504–05, 985 A.2d 1026 (2010).   There is no direct statutory authority under which the court can award attorneys fees to Castater.

The court has found no basis in statute or common law for the award of attorneys fees to the defendant in this case.   Accordingly, the motion is denied.

LINDA K. LAGER, JUDGE

FOOTNOTES

FN1. While the court concluded, during the trial, that the town had failed to make out a prima facie case on the third count of the complaint, the court did not draw that conclusion as to the first and second counts of the complaint nor did it draw that conclusion in its Memorandum of Decision dated March 15, 2011.   Further, in the memorandum the court elaborated on its decision to dismiss the third count in light of all the evidence adduced..  FN1. While the court concluded, during the trial, that the town had failed to make out a prima facie case on the third count of the complaint, the court did not draw that conclusion as to the first and second counts of the complaint nor did it draw that conclusion in its Memorandum of Decision dated March 15, 2011.   Further, in the memorandum the court elaborated on its decision to dismiss the third count in light of all the evidence adduced.

FN2. Likewise, no argument was sought on the town's motion to quash the trial subpoena directed to Mayor Harkins nor was any effort made to compel Mayor Harkins' attendance at trial..  FN2. Likewise, no argument was sought on the town's motion to quash the trial subpoena directed to Mayor Harkins nor was any effort made to compel Mayor Harkins' attendance at trial.

Lager, Linda K., J.