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ATHENA HOLDINGS, LLC v. JAN MARCUS

(AC 35979)

Gruendel, Beach and Borden, Js.

Argued April 20—officially released October 13, 2015

(Appeal from Superior Court, judicial district of

Danbury, Ozalis, J.)

Nathan C. Nasser, with whom, on the brief, was Jan

A. Marcus, for the appellant (defendant).

Edward M. Rosenthal, for the appellee (plaintiff).
Opinion

GRUENDEL, J. The sole issue in this appeal is

whether the trial court properly denied the defendant’s

motion for attorney’s fees pursuant to General Statutes

§ 42-150bb.1 Specifically, the defendant, Jan Marcus,

claims that he was entitled to attorney’s fees for his

successful defense of two of the three counts alleged in

the plaintiff’s complaint. The plaintiff, Athena Holdings,

LLC, argues in opposition that, because it prevailed on

the breach of contract count, the trial court properly

concluded that the defendant did not successfully

defend the action and, therefore, attorney’s fees were

unavailable under § 42-150bb. We agree with the plaintiff and affirm the judgment of the trial court.

The following facts and procedural history are taken

from the court’s memorandum of decision. The plaintiff

owns and operates a nursing home facility in Ridgefield.

On November 12, 2008, pursuant to an agreement

between the parties, the defendant, an attorney, admitted his elderly mother to the plaintiff’s nursing home.

After her admission, the defendant’s mother remained

a resident at the facility until her death on May 10, 2009.

The agreement between the parties classified the

defendant as the ‘‘Responsible Party.’’ Under the terms

of the agreement, the ‘‘Responsible Party does not personally guarantee or serve as surety for payment as

described in paragraphs II, III and XIV. Responsible

Party liability for failure to perform any of the obligations set forth in this agreement shall be determined

in accordance with the provisions of this agreement.’’

Section IV of the agreement stated in relevant part that

‘‘if the Responsible Party has received a transfer of

assets from the Resident that result in the Resident’s

ineligibility for Medicaid assistance, the Responsible

Party agrees that these assets, or an amount of the

Responsible Party’s funds at least equal to these assets,

will be used for the cost of care and services rendered

to the Resident until the Resident is determined to be

eligible for Medicaid assistance by the Connecticut

Department of Social Services . . . .’’ This section also

stated that the ‘‘Responsible Party agree[s] to act

promptly and expeditiously to establish and maintain

eligibility for Medicaid assistance . . . [and] during the

pendency of any application for Medicaid assistance,

the Resident’s monthly income, less a personal needs

allowance as established by the Department of Social

Services, will be paid to the Facility on or before the

tenth of each month.’’ Section V of the agreement provided: ‘‘If the Responsible Party has control of or access

to the Resident’s income and/or assets, the Responsible

Party agrees that these funds shall be used for the

Resident’s welfare, including but not limited to making

prompt payment for the care and services rendered to

the Resident in accordance with the terms of this

agreement.’’
The plaintiff initiated the present action, seeking

recovery of $47,444 in unpaid fees incurred by the defendant’s mother during her stay at the plaintiff’s facility.

The complaint alleged the following three counts: (1)

breach of contract, (2) promissory estoppel, and (3)

negligence. In addition to monetary damages, the plaintiff sought reasonable attorney’s fees under the terms

of the agreement,2

interest, and taxable costs.

The case was tried to the court, which rendered its

decision in favor of the plaintiff on the breach of contract count and in favor of the defendant on the promissory estoppel and negligence counts. Accordingly, the

court rendered judgment in favor of the plaintiff in the

amount of $15,778. This amount was determined on the

basis of three findings. First, the court found that the

defendant’s mother had, in violation of the agreement,

transferred $8100 in assets to the defendant that should

have been used to pay the plaintiff. Second, the court

found that the defendant had controlled his mother’s

Social Security and pension benefits and had breached

the agreement when he failed to transfer to the plaintiff

$6608 in benefits received by his mother. Finally, the

court found that the defendant had improperly received

an additional $1070 transfer of his mother’s assets,

which also should have been used to pay the plaintiff.

The court’s judgment also included an award of attorney’s fees to the plaintiff and a denial of attorney’s fees

to the defendant. The court concluded that, pursuant

to Section XIII of the agreement, the plaintiff was entitled to reasonable attorney’s fees on the basis that it

had prevailed on the breach of contract count. The

court further concluded that the defendant was not

entitled to attorney’s fees under § 42-150bb because the

plaintiff had prevailed on count one of its complaint

and therefore, the defendant had failed to successfully

defend the action. Thereafter, the defendant filed a

motion forreconsideration of the court’s denial of attorney’s fees, arguing that § 42-150bb did not require a

‘‘complete victory’’ as a prerequisite to a consumer

defendant’s right to attorney’s fees under the statute.

The court denied the defendant’s motion and awarded

$2336.70 in attorney’s fees to the plaintiff.3 The defendant appeals from this judgment.

On appeal, the defendant claims that he is entitled

to recover attorney’s fees under § 42-150bb because he

successfully defended against two of the three counts

of the plaintiff’s complaint. The plaintiff, on the other

hand, argues that because the court awarded damages

on the breach of contract count, the defendant did not

‘‘successfully’’ defend the action, and therefore was not

entitled to attorney’s fees under § 42-150bb. We agree

with the plaintiff and conclude that the defendant did

not successfully defend the action.

We begin with the standard of review governing this
appeal. The proper construction and meaning to be

afforded to the statutory language of § 42-150bb is a

question of law over which we exercise plenary review.

Ugrin v. Cheshire, 307 Conn. 364, 379–80, 54 A.3d 532

(2012). ‘‘When construing a statute, [o]ur fundamental

objective is to ascertain and give effect to the apparent

intent of the legislature. . . . In other words, we seek

to determine, in a reasoned manner, the meaning of the

statutory language as applied to the facts of [the] case,

including the question of whether the language actually

does apply. . . . In seeking to determine that meaning,

General Statutes § 1–2z directs us first to consider the

text of the statute itself and its relationship to other

statutes. If, after examining such text and considering

such relationship, the meaning of such text is plain and

unambiguous and does not yield absurd or unworkable

results, extratextual evidence of the meaning of the

statute shall not be considered.’’ (Internal quotation

marks omitted.) Cruz v. Montanez, 294 Conn. 357, 367,

984 A.2d 705 (2009). ‘‘If the language is ambiguous, the

ambiguity is normally resolved by turning for guidance

to the legislative history and the purpose the statute is

to serve.’’ (Internal quotation marks omitted.) State v.

Mattioli, 210 Conn. 573, 576, 556 A.2d 584 (1989).

Section 42-150bb provides in relevant part: ‘‘Whenever any contract or lease entered into on or after October 1, 1979, to which a consumer is a party, provides

for the attorney’s fee of the commercial party to be paid

by the consumer, an attorney’s fee shall be awarded

as a matter of law to the consumer who successfully

prosecutes or defends an action or a counterclaim

based upon the contract or lease. . . .’’ ‘‘[This statute]

is in derogation of the common law. Specifically, [t]he

general rule of law known as the American rule is that

attorney’s fees and ordinary expenses and burdens of

litigation are not allowed to the successful party absent

a contractual or statutory exception. . . . Connecticut

adheres to the American rule. . . . Section 42-150bb

is, however, one of [the] exceptions to the commonlaw rule. . . . [The statute] clearly authorizes an award

of attorney’s fees to the consumer who successfully

prosecutes or defends an action or a counterclaim on

a consumer contract or lease.’’ (Citation omitted;

emphasis added; internal quotation marks omitted.)

Aaron Manor, Inc. v. Irving, 307 Conn. 608, 616–17, 57

A.3d 342 (2013). ‘‘The purpose of § 42-150bb is to bring

parity between a commercial party and a consumer

who defends successfully an action on a contract prepared by the commercial party.’’ Id., 618. Stated differently, when a commercial entity enters into a consumer

contract that provides the commercial entity with the

contractual right to recover attorney’s fees, § 42-150bb

provides consumers with a reciprocal statutory right

to recover attorney’s fees if he or she successfully prosecutes or defends an action or counterclaim.

On appeal, the defendant argues that § 42-150bb
should apply to the facts of this case. Specifically, the

defendant argues that the plaintiff’s failure to establish

essential elements of its promissory estoppel and negligence counts constituted a ‘‘successful defense’’ under

§ 42-150bb, thereby entitling him to attorney’s fees.

We disagree.

We begin our analysis by reviewing the language of

the statute. Section 42-150bb provides a statutory right

to attorney’s fees to the consumer who successfully

prosecutes or defends an action or counterclaim based

on a contract. As this court has previously held, ‘‘[t]he

word action has no precise meaning and the scope of

proceedings which will be included within the term

. . . depends upon the nature and purpose of the particular statute in question. . . . What the legislature may

have intended to be a civil action for some purposes

may not be a civil action for others.’’ (Internal quotation

marks omitted.) Bobbin v. Sail the Sounds, LLC, 153

Conn. App. 716, 721, 107 A.3d 414 (2014). Accordingly,

we conclude that the term ‘‘action’’ is ambiguous and

we look to the legislative history to determine its meaning. Our Supreme Court has previously reviewed the

statute’s legislative history and held that ‘‘it was

designed to provide equitable results for a consumer

who successfully defended an action under a commercial contract and the commercial party who was entitled

to attorney’s fees. . . . The purpose of § 42-150bb is

to bring parity between a commercial party and a consumer who defends successfully an action on a contract

prepared by the commercial party.’’ (Citation omitted;

internal quotation marks omitted.) Aaron Manor, Inc.

v. Irving, supra, 307 Conn. 617–18.

With this purpose in mind, it is clear that it was the

plaintiff, rather than the defendant, who ‘‘succeeded’’

in the present contract action. The plaintiff’s complaint

sought recovery of money allegedly owed to it under

the terms of the agreement. Thus, the plaintiff initiated

the present action seeking judicial enforcement of its

rights underthe contract. While the plaintiff’s complaint

comprised of three counts, each asserting independent

legal theories of recovery, only one count sought recovery for breach of contract. Although it is permissible

under our rules of practice to advance alternative and

even inconsistent theories of liability in a single complaint; Dreier v. Upjohn Co., 196 Conn. 242, 245, 492

A.2d 164 (1985);4

the plaintiff would have been allowed

to recover attorney’s fees under the contract only if it

had prevailed, as it did, on the breach of contract count.

Similarly, the defendant’s statutory right to attorney’s

fees depended on whether he was successful in

defending against the breach of contract count. As the

defendant was unsuccessful in defending against this

count, and no other claim arose under the contract,

we conclude that the defendant has not successfully

defended the action and therefore is not entitled to

attorney’s fees under § 42-150bb.5
In conclusion, ‘‘[i]t is the duty of the court to interpret

statutes as they are written . . . and not by construction read into statutes provisions which are not clearly

stated.’’ (Citations omitted; internal quotation marks

omitted.) State v. Johnson, 227 Conn. 534, 542, 630 A.2d

1059 (1993); see Forsyth v. Rowe, 226 Conn. 818, 828,

629 A.2d 379 (1993); State v. Dupree, 196 Conn. 655,

660, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct.

318, 88 L. Ed. 2d 301 (1985). Section 42-150bb provides

for attorney’s fees ‘‘to the consumer who successfully

prosecutes or defends an action . . . based upon the

contract . . . .’’ (Emphasis added.) Accordingly, we

decline the defendant’s invitation to interpret the language of the statute to provide for attorney’s fees to a

consumer defendant who successfully defends against

two alternative theories of liability set forth in the complaint, but loses on the breach of contract count, the

only count ‘‘based upon the contract.’’

The judgment is affirmed.

In this opinion the other judges concurred.

1 General Statutes § 42-150bb provides: ‘‘Attorney’s fees in action based

on consumer contract or lease. Whenever any contract or lease entered into

on or after October 1, 1979, to which a consumer is a party, provides for

the attorney’s fee of the commercial party to be paid by the consumer, an

attorney’s fee shall be awarded as a matter of law to the consumer who

successfully prosecutes or defends an action or a counterclaim based upon

the contract or lease. Except as hereinafter provided, the size of the attorney’s fee awarded to the consumer shall be based as far as practicable upon

the terms governing the size ofthe fee forthe commercial party. No attorney’s

fee shall be awarded to a commercial party who is represented by its salaried

employee. In any action in which the consumer is entitled to an attorney’s

fee under this section and in which the commercial party is represented by

its salaried employee, the attorney’s fee awarded to the consumer shall be

in a reasonable amount regardless of the size of the fee provided in the

contract or lease for either party. For the purposes of this section, ‘commercial party’ means the seller, creditor, lessor or assignee of any of them, and

‘consumer’ means the buyer, debtor, lessee or personal representative of

any of them. The provisions of this section shall apply only to contracts or

leases in which the money, property or service which is the subject of the

transaction is primarily for personal, family or household purposes.’’

2 The contract between the parties provided for reasonable attorney’s fees

in the event the plaintiff incurred costs of collection. Section XIII of the

agreement provides in relevant part that ‘‘[u]pon referral of Resident’s overdue account to an Attorney or to an agency for collection, the Resident and

Responsible [Party] agree to pay the costs of collection including reasonable

attorney’s fees.’’

3 The court concluded that the plaintiff’s attorney’s fees were limited to

15 percent of the judgment, in accordance with General Statutes § 42-150aa.

4

In Dreier v. Upjohn Co., supra, 196 Conn. 246, our Supreme Court noted

that ‘‘[o]ur laws formerly cast on the plaintiff the duty of construing his

rights with respect to the form in which they ought to be brought before

the court, and the relief to which he might be entitled, at the risk of losing

everything if he mistook his remedy. The Practice Act enables him, in a

case like the present, to throw this duty of construction upon the court. It

is enough for him to tell his story as plainly and concisely as may be,

and to state the different kinds of relief, one of which he thinks he may

fairly claim.’’

5 We also note that it would be inconsistent with our rules of practice to

punish a plaintiff who succeeds on one legal theory of liability, and by doing

so, necessarily loses on an alternative theory. See Glazer v. Dress Barn,

Inc., 274 Conn. 33, 88–89, 873 A.2d 929 (2005) (well settled that breach of

contract and promissory estoppel are inconsistent theories of recovery, as

promissory estoppel is appropriate only in absence of contract).