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TOWN OF LEDYARD v. WMS GAMING, INC.

(AC 39746)

DiPentima, C. J., and Beach, Alvord, Sheldon and Prescott, Js.*

Considered December 14, 2016—officially released March 21, 2017

(Appeal from Superior Court, judicial district of New

London, Vacchelli, J.)

Lloyd L. Langhammer, in support of the motion.

Aaron S. Bayer and David R. Roth, in opposition to

the motion.
Opinion

DiPENTIMA, C. J. The motion before the court challenges ourjurisdiction overthe appeal of the defendant,

WMS Gaming, Inc., from the decision of the trial court

rendering summary judgment as to liability only in favor

of the plaintiff, the town of Ledyard, with respect to

certain attorney’s fees incurred by the plaintiff. The

plaintiff moves to dismiss the defendant’s appeal for

lack of subject matter jurisdiction, claiming that the

trial court’s decision is not an appealable final judgment

because the trial court has not determined the amount

of the attorney’s fees. We conclude that the trial court’s

decision rendering summary judgment as to liability

only in favor of the plaintiff with regard to the attorney’s

fees at issue is not an appealable final judgment.

Accordingly, we grant the plaintiff’s motion to dismiss

the defendant’s appeal.

The record before the court reveals the following

facts and procedural history. In 2008, the plaintiff commenced the underlying action to collect unpaid personal

property taxes that it had imposed on slot machines that

the defendant owned and leased to the Mashantucket

Pequot Tribal Nation (Tribal Nation) for use in its gaming facilities. As relief, the plaintiff sought $18,251.23

in unpaid personal property taxes, plus costs, interest,

and penalties. In addition, the plaintiff sought attorney’s

fees pursuant to General Statutes § 12-161a.

Shortly after the plaintiff had commenced the underlying state action, the Tribal Nation filed an action in

the United States District Court for the District of Connecticut challenging the authority of the state of Connecticut and the plaintiff1

to impose the taxes at issue

in the present state action.2 Although it was not a party

to the federal action commenced by the Tribal Nation,

the defendant filed a motion to stay the present state

action pending the outcome of the federal action, which

the trial court, Martin, J., granted.

On March 27, 2012, the District Court ruled on cross

motions for summary judgment filed in the consolidated

federal action. The District Court, determining that the

authority of the state and the plaintiff to impose the

taxes was preempted by federal law, granted the Tribal

Nation’s motion for summary judgment and denied separate motions for summary judgment filed by the plaintiff and the state, respectively. See Mashantucket

Pequot Tribe v. Ledyard, United States District Court,

Docket No. 3:06CV1212 (WWE), 2012 WL 1069342, *12

(D. Conn. March 27, 2012), rev’d, 722 F.3d 457 (2d Cir.

2013). On July 15, 2013, the United States Court of

Appeals for the Second Circuit reversed the District

Court’s judgment, concluding that the authority of the

state and the plaintiff to impose the taxes was not

preempted by federal law. See Mashantucket Pequot

Tribe v. Ledyard, 722 F.3d 457, 477 (2d Cir. 2013).
After the proceedings had resumed in the present

state action, the parties executed a stipulation. Under

the stipulation, the parties agreed that the defendant

had tendered payment to the plaintiff for all outstanding

taxes, accrued interest, and accrued penalties at issue.

They further agreed that the plaintiff was entitled to

reasonable attorney’s fees and costs incurred in the

underlying state action, the amount of which would be

determined by the trial court and the payment of which

would be accepted by the plaintiff as satisfaction of all

of the taxes, interest, penalties, attorney’s fees, and

costs recoverable by the plaintiff with respect to the

underlying state action. They disputed, however,

whether the trial court could also find the defendant

liable for attorney’s fees incurred by the plaintiff in

defense of the federal action commenced by the Tribal

Nation to which the defendant was not a party (federal

action attorney’s fees). The parties agreed to submit to

the trial court the issue of whether the defendant was

liable for the federal action attorney’s fees.

After executing the stipulation, the parties filed cross

motions for summary judgment as to liability only with

respect to the federal action attorney’s fees. On October

6, 2016, the trial court, Vacchelli, J., issued its memorandum of decision granting the plaintiff’s motion for summary judgment, denying the defendant’s motion for

summary judgment, and rendering summary judgment

as to liability only in favor of the plaintiff with respect

to the federal action attorney’s fees. The trial court

concluded that the defendant was liable for the federal

action attorney’s fees pursuant to § 12-161a.3 The trial

court further stated that the plaintiff could file a motion

for attorney’s fees within thirty days and that a hearing

would be scheduled thereafter to determine the amount

of the attorney’s fees to which the plaintiff is entitled.

Shortly thereafter, on October 11, 2016, the plaintiff

filed a motion for attorney’s fees.

On October 25, 2016, prior to the trial court scheduling a hearing on the plaintiff’s motion for attorney’s

fees, the defendant appealed the trial court’s decision

with respect to the federal action attorney’s fees. The

plaintiff’s motion to dismiss the defendant’s appeal

followed.

The plaintiff moves to dismiss the defendant’s appeal

for lack of subject matter jurisdiction, asserting that

the trial court’s decision rendering summary judgment

as to liability only in favor of the plaintiff with respect

to the federal action attorney’s fees is not an appealable

final judgment because the trial court has not determined the amount of the attorney’s fees to which the

plaintiff is entitled. In response, the defendant contends

that the trial court’s decision is immediately appealable

under the rationale of Hylton v. Gunter, 313 Conn. 472,

97 A.3d 970 (2014). We agree with the plaintiff.
‘‘As a preliminary matter, we set forth the standard

of review. The lack of a final judgment implicates the

subject matter jurisdiction of an appellate court to hear

an appeal. A determination regarding . . . subject matter jurisdiction is a question of law . . . [and, therefore] our review is plenary. . . . The right of appeal is

accorded only if the conditions fixed by statute and the

rules of court for taking and prosecuting the appeal are

met. . . . It is . . . axiomatic that, except insofar as

the legislature has specifically provided for an interlocutory appeal or other form of interlocutory appellate

review . . . appellate jurisdiction is limited to final

judgments of the trial court.’’ (Citation omitted; internal

quotation marks omitted.) Id., 478.

We begin our analysis with a review of Paranteau v.

DeVita, 208 Conn. 515, 544 A.2d 634 (1988). In Paranteau, the plaintiff tenants sued the defendant landlord,

alleging, inter alia, a violation of the Connecticut Unfair

Trade Practices Act, General Statutes §§ 42-110a et seq.

Id., 517. The trial court rendered judgment on the merits

in favor of the plaintiffs on all counts and implicitly

awarded them attorney’s fees pursuant to General Statutes § 42-110g (d), but delayed determining the amount

of the attorney’s fees. Id. Following a hearing held over

twenty days after the judgment had been rendered, the

trial court determined the sum of the attorney’s fees to

be $2580. Id. The defendantin Paranteau filed an appeal

eight days after the hearing, challenging both the judgment on the merits as well as the supplemental postjudgment attorney’s fees order. Id., 518. The plaintiffs

timely filed a motion to dismiss the appeal on the ground

that it was untimely. Id. This court granted the motion

to dismiss and dismissed the appeal in toto. Id.

After granting the defendant’s certification to appeal

in Paranteau, our Supreme Court reversed this court’s

judgment in part. Id. Our Supreme Court first determined that this court properly had dismissed, as

untimely, the portion of the appeal challenging the judgment on the merits, concluding that ‘‘a judgment on the

merits is final for purposes of appeal even though the

recoverability or amount of attorney’s fees for the litigation remains to be determined.’’ Id., 523. It then determined that this court had improperly dismissed, as

untimely, the portion of the appeal challenging the trial

court’s supplemental postjudgment attorney’s fees

order, concluding that ‘‘such an order may raise a collateral and independent claim that is separately appealable

as a final judgment.’’ Id. In a footnote, it further

explained: ‘‘A supplemental postjudgment award of

attorney’s fees becomes final and appealable . . . not

when there is a finding of liability for such fees, but

when the amount of fees are conclusively determined.

A finding as to liability only, prior to a determination

on the issue of damages, is not a final judgment from

which an appeal lies. . . . Furthermore, a timely
appeal from a supplemental postjudgment award of

attorney’s fees may challenge not only the amount

awarded, but the underlying recoverability of such fees

as well.’’ (Citation omitted.) Id., 524 n.11.4

This court has relied on Paranteau to dismiss

appeals, in whole orin part, challenging awards of attorney’s fees where the appeals were filed prior to the

conclusive determinations of the amount of the attorney’s fees. See Bailey v. Lanou, 138 Conn. App. 661,

675–77, 54 A.3d 198 (2012) (dismissing, sua sponte, portion of appeal challenging award of statutory attorney’s

fees where trial court had not determined amount of

attorney’s fees prior to filing of appeal); McKeon v.

Lennon, 131 Conn. App. 585, 610–11, 27 A.3d 436 (dismissing portion of appeal challenging award of attorney’s fees where trial court had not determined amount

of attorney’s fees prior to filing of appeal), cert. denied,

303 Conn. 901, 31 A.3d 1178 (2011);5 Sullivan v. Brown,

116 Conn. App. 660, 661 n.1, 662–63, 975 A.2d 1289

(dismissing, sua sponte, appeal challenging award of

statutory attorney’s fees and costs where trial court

had not determined amount of attorney’s fees and costs

prior to filing of appeal), cert. denied, 294 Conn. 914,

983 A.2d 852 (2009); see also Burns v. General Motors

Corp., 80 Conn. App. 146, 150–51 n.6, 833 A.2d 934

(noting, in dictum, that award of statutory attorney’s

fees was not appealable final judgment where trial court

had not determined amount of attorney’s fees prior to

filing of appeal), cert. denied, 267 Conn. 909, 840 A.2d

1170 (2003).

The defendant relies on Hylton v. Gunter, supra, 313

Conn. 472, to support its assertion that the trial court’s

decision rendering summary judgment as to liability

only in favor of the plaintiff with respect to the federal

action attorney’s fees is immediately appealable. In Hylton, the parties were equal members of a limited liability

company. Id., 475. The plaintiff sued the defendant,

raising claims, inter alia, of fraud and negligence on

the basis of allegations that the defendant had been

misappropriating the limited liability company’s funds

for his personal use. Id. The trial court rendered judgment on the merits in favor of the plaintiff on all counts

and awarded him compensatory damages. Id. The trial

court also awarded the plaintiff common-law punitive

damages in the form of attorney’s fees and instructed

the plaintiff to file an affidavit of attorney’s fees within

thirty days. Id. The defendant appealed prior to the trial

court’s determination of the amount of the attorney’s

fees, and he did not amend his appeal once the trial

court had rendered a judgment establishing the amount

of the attorney’s fees. Id., 475–76.

This court placed the appeal in Hylton on its own

motion calendar for a determination of whether the

appeal should be dismissed for lack of a final judgment.

Id., 476. After the motion hearing, this court marked
the matter over. Id. The parties subsequently briefed

the final judgment issue and argued the issue as part

of the appeal. Id. This court subsequently dismissed the

appeal for lack of an appealable final judgment, relying

upon its prior decision in Lord v. Mansfield, 50 Conn.

App. 21, 717 A.2d 267, cert. denied, 247 Conn. 943, 723

A.2d 321 (1998), overruled by Hylton v. Gunter, supra,

313 Conn. 488–89. See Hylton v. Gunter, 142 Conn. App.

548, 554, 66 A.3d 517 (2013), rev’d, 313 Conn. 472, 97

A.3d 970 (2014). In Lord, this court held that a judgment

is not final for purposes of appeal where the trial court

awards common-law punitive damages without

determining the amount of the common-law punitive

damages. Lord v. Mansfield, supra, 24, 28. In reaching

that conclusion, this court determined that commonlaw punitive damages, unlike attorney’s fees, serve the

purpose of compensating the injured party fully and

are not wholly separate from a judgment rendered on

the merits. Id., 26–28.

After granting the defendant’s petition for certification to appeal, our Supreme Court reversed this court’s

judgment. Hylton v. Gunter, supra, 313 Conn. 477–78.

After analyzing Paranteau and subsequent cases,6

it

determined that the judgment rendered on the merits

was an appealable final judgment, even though the trial

court had not determined the amount of the attorney’s

fees awarded as common-law punitive damages prior

to the filing of the appeal. Id., 479–84. It concluded that

the bright line rule articulated in Paranteau, namely,

that ‘‘a judgment on the merits is final for purposes of

appeal even though the recoverability or amount of

attorney’s fees for the litigation remains to be determined’’; (internal quotation marks omitted) id., 480;

applied equally in the context of common-law punitive

damages. Id., 484. In reaching its conclusion, our

Supreme Court declined to distinguish attorney’s fees

awarded pursuant to the applicable statutes from attorney’s fees awarded as common-law punitive damages,

determining that common-law punitive damages are

akin to statutory attorney’s fees ‘‘in practicality and

purpose, insofar as both provide the same relief and

serve the same function . . . namely, fully compensating injured parties.’’ (Citation omitted; footnote omitted; internal quotation marks omitted.) Id., 484–86. Our

Supreme Court also emphasized that its approach ‘‘suggests that what is of importance here is not preservation

of conceptual consistency in the status of a particular

fee authorization as ‘merits’ or ‘nonmerits,’ but rather

preservation of operational consistency and predictability in the overall application of [the final judgment

rule].’’ Id., 487. Hylton expressly overruled this court’s

judgment in Lord. Id., 488–89.7

The defendant asserts that, under the rationale of

Hylton, the trial court’s decision rendering summary

judgment as to liability only in the plaintiff’s favor with

respect to the federal action attorney’s fees is immedi-
ately appealable. According to the defendant, Hylton

provides that a liability determination with respect to

attorney’s fees awarded as damages may be appealed

before the amount of the attorney’s fees is determined.

The defendant claims that the federal action attorney’s

fees are similar in nature to the attorney’s fees awarded

as common-law punitive damages in Hylton and, therefore, the trial court’s liability determination with respect

to the federal action attorney’s fees is appealable immediately. We are not persuaded.

In Hylton, our Supreme Court held that a judgment

rendered on the merits, which included an award of

common-law punitive damages limited to attorney’s

fees, was an appealable final judgment notwithstanding

the lack of a determination of the amount of the attorney’s fees at the time that the appeal was filed. In the

present case,the trial court has notrendered a judgment

disposing of the merits of the present action.

The defendant is appealing only from the trial court’s

decision rendering summary judgment as to liability

only in favor of the plaintiff with respect to the federal

action attorney’s fees, which were awarded pursuant

to § 12-161a. Hylton does not stand for the proposition

that the trial court’s liability determination with respect

to the federal action attorney’s fees is immediately

appealable absent a calculation of the attorney’s fees.8

Pursuant to the rationale of Paranteau, a timely

appeal taken from a decision conclusively determining

the amount of an attorney’s fees award may challenge

both the amount and recoverability of the attorney’s

fees awarded. Applying the rationale of Paranteau to

the circumstances of the present action, we conclude

that the trial court’s decision rendering summary judgment as to liability only in the plaintiff’s favor with

respect to the federal action attorney’s fees is not an

appealable final judgment absent a determination of

the amount of the attorney’s fees.9 See also Burns v.

General Motor Corp., supra, 80 Conn. App. 151 n.6 (‘‘The

situation . . . is similar to where a judgment has been

rendered only upon the issue of liability without an

award of damages. Such a judgment, being interlocutory

in character, is not a final judgment from which an

appeal lies. . . . Thus, the award of reasonable attorney’s fees without a determination of the amount of

the attorney’s fees is not appealable for lack of a final

judgment.’’ [Citation omitted; internal quotation

marks omitted].).

The plaintiff’s motion to dismiss the defendant’s

appeal is granted and the appeal is dismissed.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date on which this matter was considered.

1 The plaintiff’s tax assessor and the plaintiff’s tax collector were also

parties to the federal action.

2

In 2006, the Tribal Nation filed a substantively similar federal action

challenging, as unauthorized, taxes that the plaintiff was imposing on slot
machines that a different vendor owned and leased to the Tribal Nation.

The two federal actions commenced by the Tribal Nation were consolidated.

3 General Statutes § 12-161a provides: ‘‘In the institution of proceedings

by any municipality to enforce collection of any delinquent tax on personal

property from the owner of such property, through (1) levy and sale with

respect to any goods or chattels owned by such person, (2) enforcement

of a lien, established and perfected in accordance with sections 12-195a to

12-195g, inclusive, upon any such goods or chattels or (3) any other proceeding in law in the name of the municipality for purposes of enforcing such

collection, such person shall be required to pay any court costs, reasonable

appraiser’s fees or reasonable attorney’s fees incurred by such municipality

as a result of and directly related to such levy and sale, enforcement of lien

or other collection proceedings.’’

4 With respect to the effect of its decision, our Supreme Court stated: ‘‘We

are aware that the rules we have today adopted may, in some cases, lead

to ‘piecemeal’ appeals of judgments on the merits and awards of attorney’s

fees. The problem of fragmented appeals, however, may be averted if trial

judges delay rendering judgment on the merits until the fee issue is resolved

and dispose of both the merits and attorney’s fees in a single judgment.

. . . If for some reason the question of attorney’s fees must be decided

after the entry of judgment on the merits, we suggest that the trial court

insist upon the prompt filing and disposition of fee requests so that any

pending appeal on the merits of the action may be amended to include any

prospective appeal from a supplemental postjudgment award of attorney’s

fees.’’ (Citation omitted; emphasis omitted.) Paranteau v. DeVita, supra,

208 Conn. 524.

5

In McKeon, the plaintiff filed an amended appeal after the trial court

had held a hearing and had determined the amount of the attorney’s fees

at issue in that case. McKeon v. Lennon, supra, 131 Conn. App. 610. Although

this court dismissed the plaintiff’s original appeal for lack of an appealable

final judgment, it concluded that it had subject matter jurisdiction over the

plaintiff’s amended appeal. Id., 611–12.

6 See Benvenuto v. Mahajan, 245 Conn. 495, 504, 715 A.2d 743 (1998)

(concluding that judgment of strict foreclosure was appealable final judgment despite lack of determination of attorney’s fees); Balf Co. v. Spera

Construction Co., 222 Conn. 211, 214–15, 608 A.2d 682 (1992) (concluding

that no appealable final judgment had been rendered where trial court had

reserved ruling on postjudgment motion for prejudgment interest).

7 On remand from our Supreme Court, this court reversed the trial court’s

judgment on the merits and ordered the trial court, on remand, to render

judgment in favor of the defendant on one count of the plaintiff’s complaint

and to conduct a new trial on the remaining counts. See Hylton v. Gunter,

157 Conn. App. 358, 366, 116 A.3d 371 (2015).

8 The defendant also asserts that we should entertain this appeal for the

sake of efficiency, claiming that, if held, the proceedings to determine the

amount of the attorney’s fees owed to the plaintiff will be extensive and

that such proceedings will be avoided if we reverse the trial court’s decision.

In addition, the defendant suggests that, by entertaining this appeal, we may

provide the trial court and the parties with guidance with regard to the

meaning and application of § 12-161a. These considerations, however, cannot be reviewed at this time as a result of our lack of subject matter

jurisdiction over this appeal.

9 Our holding is limited to the circumstances of the present action before

us. We do not address the appealability of this matter should an appeal be

filed following a decision of the trial court determining the amount of the

federal action attorney’s fees.