Anthony Maio v. City of New Haven (2013)

MEMORANDUM OF DECISION, IN RE MOTION IN LIMINE NO. 137

The defendant seeks to preclude evidence or mention of attorneys fees and costs during the prosecution and enforcement of this action on the ground that General Statutes § 53–39a,¹ as amended by Public Act 10–68,² does not apply retroactively to the plaintiff's claim.   For the reasons set forth below, the court grants the defendant's motion.

PROCEDURAL HISTORY

This action was commenced on June 18, 2010 by the plaintiff, Anthony Maio, seeking indemnification of economic damages and legal fees incurred against the defendant, the city of New Haven, as a result of being criminally prosecuted.   The plaintiff alleges the following facts.   On April 18, 2008, Maio worked on an extra duty assignment as a New Haven police officer at a local establishment.   While on duty, two women at the premises accused Maio of touching them in a sexual and inappropriate manner.   Consequently, on April 19, 2008, Maio was criminally charged with two counts of sexual assault in the fourth degree and two counts of unlawful restraint in violation of our state penal code.   Subsequently, on August 12, 2009, at a criminal trial in the Superior Court, a jury acquitted Maio of all counts.   As a result of the acquittal, Maio presented the city of New Haven with an invoice requesting indemnification in the amount of $186,704.72, pursuant to Connecticut General Statutes § 53–39a.³

On June 7, 2013, the defendant filled the instant motion in limine to preclude evidence or mention of attorneys fees and costs during the prosecution and enforcement of this action.   The plaintiff filled an objection to the defendant's motion in limine on June 27, 2013.   The matter was heard at argument on June 28, 2013.

DISCUSSION

“A trial court may entertain a motion in limine made by either party regarding the admission or exclusion of anticipated evidence ․ The judicial authority may grant the relief sought in the motion or other relief as it may deem appropriate, may deny the motion with or without prejudice to its later renewal, or may reserve decision thereon until a later time in the proceeding ․ [T]he motion in limine ․ has generally been used in Connecticut courts to invoke a trial judge's inherent discretionary powers to control proceedings, exclude evidence, and prevent occurrences that might unnecessarily prejudice the right of any party to a fair trial.”  (Internal quotation marks omitted.)  McBurney v. Paquin, 302 Conn. 359, 377–78, 28 A.3d 272 (2011).

The defendant argues that the court should preclude evidence of attorneys fees incurred during the prosecution and enforcement of this action on the ground that § 53–39a, as amended by Public Act 10–68, creates a substantiative right that cannot be retroactively applied to the present case.   Specifically, effective October 1, 2010, § 53–39a was amended to allow recovery of attorneys fees incurred from enforcing the plaintiff's right of indemnification.   The instant suit, however, was commenced on June 18, 2010.   The plaintiff argues that evidence of attorneys fees is admissible because the amendment is procedural and, therefore, retroactive.   Specifically, the plaintiff argues that the overall purpose of the statute remains to the same.

At the time this suit was commenced, § 53–39a provided, in relevant part:  “Whenever, in any prosecution of an officer ․ of a local police department for a crime allegedly committed by such officer in the course of his duty as such, the charge is dismissed or the officer found not guilty, such officer shall be indemnified by his employing governmental unit for economic loss sustained by him as a result of such prosecution, including the payment of any legal fees necessarily incurred.”   Our Supreme Court interpreted this statute, prior to the 2010 amendment, to allow an officer to recover only attorneys fees related to the prosecution, but not from a separate lawsuit to enforce the officer's right to indemnification.  Link v. Shelton, 186 Conn. 623, 632, 443 A.2d 902 (1982) (“in authorizing indemnification for attorneys fees sustained as a result of such prosecution, [the legislature] did not authorize recovery of attorneys fees sustained as a result of a separate action to enforce the right to indemnification under § 53–39a”).

Effective October 1, 2010, Public Act 10–68 amended § 53–39a to read, in relevant part:  “Whenever, in any prosecution of an officer of ․ a local police department for a crime allegedly committed by such officer in the course of his duty as such, the charge is dismissed or the officer found not guilty, such officer shall be indemnified by his employing governmental unit for economic loss sustained by him as a result of such prosecution, including the payment of attorneys fees and costs incurred during the prosecution and the enforcement of this section.”  (Emphasis added.)   Thus, the amended statute specifically allows for recovery of attorneys fees related to the criminal prosecution, as well as any attorneys fees sustained as a result of a separate action to enforce the right to indemnification under § 53–39a.

This amendment, however, cannot be retroactively applied.  General Statutes § 55–3 states:  “No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect.”   Our courts “have uniformly interpreted § 55–3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only ․ The rule is rooted in the notion that it would be unfair to impose a substantive amendment that changes the grounds upon which an action may be maintained on parties who have already transacted or who are already committed to litigation ․ Procedural statutes have been traditionally viewed as affecting remedies, not substantive rights, and therefore leave the preexisting scheme intact ․ [A]lthough [courts] have presumed that procedural or remedial statutes are intended to apply retroactively absent a clear expression of legislative intent to the contrary ․ a statute which, in form, provides but a change in remedy but actually brings about changes in substantive rights is not subject to retroactive application.”  (Citations omitted;  internal quotation marks omitted.)  D'Eramo v. Smith, 273 Conn. 610, 620–21, 872 A.2d 408 (2005).  “While there is no precise definition of either [substantive or procedural law], it is generally agreed that a substantive law creates, defines and regulates rights while a procedural law prescribes the methods of enforcing such rights or obtaining redress.”  (Internal quotation marks omitted.)   State v. Skakel, 276 Conn. 633, 680–81, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S.Ct. 578, 166 L.Ed.2d 428 (2006).

In the present case, a comparison of § 53–39a prior to the 2010 amendment and the statute as amended clearly shows the creation of a substantive right.   Specifically, the legislature replaced the language that previously stated “including the payment of any legal fees necessarily incurred” with “including the payment of attorneys fees and costs incurred during the prosecution and enforcement of this section.”   The amended statute explicitly allows for recovery of attorneys fees and costs sustained as a result of a separate action to enforce the right to indemnification under § 53–39a.   Accordingly, the right for a plaintiff to recover attorneys fees incurred in an indemnification action may only be applied prospectively because the 2010 amendment to § 53–39a created a substantive right for plaintiffs to recover attorneys fees incurred in an indemnification suit, which was not previously allowed.   See Lawlor v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV 10 6008595 (July 6, 2011, Robaina, J.) (52 Conn. L. Rptr. 161, 162).   Here, the plaintiff filed the instant action on June 18, 2010, while the amendment did not take effect until October 1, 2010.   Therefore, the plaintiff is not entitled to attorneys fees incurred during the prosecution and enforcement of this action.

The plaintiff attempts to persuade this court to deviate from the holding in Lawlor v. Hartford, supra, 52 Conn. L. Rptr. 162, and Nyenhuis v. Metropolitan District Commission, Superior Court, judicial district of Hartford, Docket No. CV 07 4034418 (March 28, 2012, Scholl, J.) [53 Conn. L. Rptr. 757].   Specifically, the plaintiff argues that Public Act 10–68 affected a procedural right because the right of indemnification is linked to the right of attorneys fees incurred as a result of a separate action seeking indemnification.   In other words, the overall purpose behind the statute remains the same.   The plaintiff attaches the statute's legislative history to support his position.

Although the overall purpose of the statute may remain the same, the legislative history is replete with discussions that show the legislature was keenly aware that, prior to the 2010 amendment, § 53–39a only allowed for indemnification related to the underlying criminal matter.   First, in the General Assembly proceedings, representative Ryan stated, “This is a bill that allows an officer to recover attorneys fees and costs from prosecution if the individual has been arrested because of some on duty incident and subsequently is vindicated by the courts.   Currently if the person goes to be made whole ․ he can get his money restituted to him, but the fact of the matter [is] any money he spent on attorney's may actually eat up any of the [money] he may have been getting in back pay.   So what this bill says is that the individual can also sue for the cost of seeking justice, in other words, for the court fees and legal fees ․” 53 H.R. Proc., Pt. 14, 2010 Sess., p. 4441–42, remarks of Representative Kevin Ryan. Additionally, the testimony of a witness in the labor and public employees committee also explicitly states:  “The bill already covers attorneys fees and has been interpreted by the courts in Connecticut to recover attorneys fees for the criminal prosecution, but ․ the part that we're addressing here is that the process of obtaining indemnification, which is a full litigation case, is not covered for attorneys fees ․” Conn. Joint Standing Committee Hearings, Labor and Public Employees, Pt. 2, 2010 Sess., p. 399.   Finally, Senator Witkos wrote, “When the unfortunate instance of a police officer getting arrested because of an on-duty incident and subsequently placed on administrative duties is vindicated by the courts, the police officer should be made whole for the economic losses incurred during the length of his/her administrative sanctions.   Municipalities have opted to fight the officer on the wages owed to them causing significant legal costs that the officer must bear.   Ultimately the cost of seeking justice causes most of the award to be consumed by legal fees.   Again this would only apply in cases wherein the officer was found not guilty or the case was dismissed by the courts.”   Conn. Joint Standing Committee Hearings, Labor and Public Employees, Pt. 3, 2010 Sess., p. 767.   Based on the testimony and remarks found in the legislative history of this statute, it is clear that the legislature knew § 53–39a, prior to the amendment, only applied to indemnification of fees associated with the underlying criminal matter.   As a result, the legislature amended the statute to add a substantive right allowing officers to recover for attorneys fees that are incurred in the process of obtaining indemnification, which was previously not included in § 53–39a.

The facts in Lawlor v. Hartford, supra, 52 Conn. L. Rptr. 162, are almost identical to the present case and support this conclusion.   In Lawlor, the plaintiff was a former police officer who was criminally charged with manslaughter and assault in the first degree.  Id., 161.   After the officer was found not guilty, he sought attorneys fees and costs incurred during the prosecution and enforcement of § 53–39a.  Id. The court held that the plaintiff could not recover attorneys fees sustained as a result of a separate action to enforce the right to indemnification because “the amendment to § 53–39a affects a substantive right, as it creates a new right of indemnification.”  Id., 162.   Additionally, the court reasoned that the legislature did not clearly and unequivocally express an intent to apply the amended language retrospectively.  Id. Therefore, the statute could not be applied retroactively.  Id.

Likewise, the court in Nyenhuis v. Metropolitan District Commission, Superior Court, judicial district of Hartford, Docket No. CV 07 4034418 (March 28, 2012, Scholl, J.) [53 Conn. L. Rptr. 757], did not allow for attorneys fees incurred in the prosecution of a civil case.   Although one reason was because the attorneys fees sustained as a result of the separate action seeking indemnification under § 53–39a was beyond the remand of the Supreme Court, the court also noted that the plaintiff could not recover attorneys fees incurred during the prosecution and enforcement of § 53–39a “[b]ecause [Public Act] 10–68 creates a new right of indemnification that did not pre-exist the amendment ․” (Internal quotation marks omitted.)  Id., quoting Lawlor v. Hartford, supra, 52 Conn. L. Rptr. 162.

Based on the rationale and precedent in these cases, the plaintiff cannot recover attorneys fees incurred in the instant litigation because § 53–39a, as amended by Public Act 10–68, creates a substantive right that cannot be retroactively applied.   The right to attorneys fees incurred while seeking indemnification is a substantive right regardless of the fact that the overall purpose of the statute may be the same.

CONCLUSION

There is no rational basis to diverge from the Superior Court holdings cited above.   Accordingly, the defendant's motion to preclude the plaintiff from presenting evidence of attorneys fees and costs incurred during the criminal prosecution and enforcement of this action is granted.

By the Court,

Nazzaro, J.

FOOTNOTES

FN1. General Statutes § 53–39a provides, in relevant part:  “Whenever, in any prosecution of an officer of ․ a local police department for a crime allegedly committed by such officer in the course of his duty as such, the charge is dismissed or the officer found not guilty, such officer shall be indemnified by his employing governmental unit for economic loss sustained by him as a result of such prosecution, including the payment of attorneys fees and costs incurred during the prosecution and the enforcement of this section.”.  FN1. General Statutes § 53–39a provides, in relevant part:  “Whenever, in any prosecution of an officer of ․ a local police department for a crime allegedly committed by such officer in the course of his duty as such, the charge is dismissed or the officer found not guilty, such officer shall be indemnified by his employing governmental unit for economic loss sustained by him as a result of such prosecution, including the payment of attorneys fees and costs incurred during the prosecution and the enforcement of this section.”

FN2. Public Act 10–68 replaced the language “any legal fees necessarily incurred” in § 53–39a with “attorneys fees and costs incurred during the prosecution and enforcement of this section.”.  FN2. Public Act 10–68 replaced the language “any legal fees necessarily incurred” in § 53–39a with “attorneys fees and costs incurred during the prosecution and enforcement of this section.”

FN3. General Statutes § 53–39a provides, in relevant part:  “Whenever, in any prosecution of an officer of ․ a local police department for a crime allegedly committed by such officer in the course of his duty as such, the charge is dismissed or the officer found not guilty, such officer shall be indemnified by his employing governmental unit for economic loss sustained by him as a result of such prosecution, including the payment of attorneys fees and costs incurred during the prosecution and the enforcement of this section.”.  FN3. General Statutes § 53–39a provides, in relevant part:  “Whenever, in any prosecution of an officer of ․ a local police department for a crime allegedly committed by such officer in the course of his duty as such, the charge is dismissed or the officer found not guilty, such officer shall be indemnified by his employing governmental unit for economic loss sustained by him as a result of such prosecution, including the payment of attorneys fees and costs incurred during the prosecution and the enforcement of this section.”

Nazzaro, John J., J.