Opinion
(7638)
The defendant L appealed from the trial court's denial of his motion for judgment of costs following the withdrawal of the plaintiff's action against him. Held that in order to prevail under the statute ( 52-81) mandating the taxation of costs upon the withdrawal of an action against a party, that party must comply with the rule of practice (412) pertaining to the taxation of costs.
Submitted on briefs October 3, 1989
Decision released November 7, 1989
Action to recover damages for breach of a contract for services rendered and materials supplied to the defendants, and for other relief, brought to the Superior Court in the judicial district of Hartford-New Britain at Hartford, where the defendant Frank X. Lo Sacco, filed a counterclaim and a cross complaint; thereafter, the court, Satter, J., granted the defendant Debra Young's motion to strike the cross complaint and granted the plaintiff's motion to dismiss the counterclaim; subsequently, the motion was tried to the court, Fracasse, J.; judgment for the plaintiff in accordance with the parties' stipulation, from which the defendant Frank X. Lo Sacco appealed to this court. No error.
Frank X. Lo Sacco, pro se, the appellant (defendant), filed a brief.
George M. Purtill and Sharon H. Purtill filed a brief for the appellee (plaintiff).
The sole issue on appeal is whether the trial court erred in denying the defendant Frank X. Lo Sacco's "motion for judgment of costs." This issue arises from a rather complex procedural scenario which bears description.
In 1982, the plaintiff, Triangle Contractors, Inc., successfully brought an action against Debra M. Young Inc., to collect monies for services rendered on a construction project. Judgment was rendered for the plaintiff, but, to date, the plaintiff has been unsuccessful in satisfying that judgment.
In 1985, Triangle brought the present action against the defendants, Debra M. Young, Inc., Debra M Young, and Frank X. Lo Sacco, alleging that the previously obtained judgment could not be satisfied because the entirety of the assets of Debra M. Young, Inc., had been transferred to Lo Sacco. On October 11, 1988 Triangle withdrew the action as to the defendant Lo Sacco. Thereafter, Triangle and the other defendants stipulated to judgments.
On November 29, 1988, Lo Sacco filed a bill of cost with the court, and, on the next day, he filed a "motion for judgment for costs as to Defendant Frank X Lo Sacco upon withdrawal by plaintiff." After a hearing on December 12, 1988, the trial court, Fracasse, J. denied the motion. In response to Lo Sacco's motion for articulation, Judge Fracasse stated that he denied the motion because "there is not such a motion or procedure provided by the rules of practice." It is from that denial that Lo Sacco now appeals.
To complete the procedural scenario, however, we must also note that, subsequent to the trial court's denial of his "motion for judgment of costs" and his appeal therefrom, Lo Sacco filed an amended bill of costs with the clerk of the court pursuant to Practice Book 412. After a hearing held on January 31, 1989, the clerk denied Lo Sacco's motion and ordered no taxation of costs "since there is an appeal pending to the Appellate Court." Lo Sacco took no appeal from that decision.
See 2 E. Stephenson, Connecticut Civil Procedure (2d. Ed) 302a and 312, regarding the complete procedure for taxation of costs.
The appeal referred to here is the defendant's appeal of the denial by the trial court, Fracasse, J., of his motion for judgment of costs.
Lo Sacco argues that the court erred in denying his motion for judgment of costs. He bases his claim on General Statutes 52-81 which mandates that, if claimed by him, a judgment for costs be entered upon the withdrawal of an action by the plaintiff. The gravamen of Lo Sacco's argument rests on the fact that he initially looked to the clerk of the court for his costs, but the clerk directed him to the court. The court then denied his motion and, in effect, returned him to the clerk. Lo Sacco appealed the trial court's denial and the clerk, in turn, denied him costs because of the pending appeal. The essence of Lo Sacco's argument is that in light of this procedural maze he was wrongfully denied his statutorily mandated reimbursement of costs.
General Statutes 52-81 provides: "Upon the withdrawal of any civil action after it has been returned to court and entered upon the docket, and after an appearance has been entered for the defendant, a judgment for costs, if claimed by him, shall be rendered in his favor, but not otherwise. Judgment for costs shall not be rendered after the expiration of six months from the date of the withdrawal and no costs may be allowed which accrued after actual notice in writing of the withdrawal and no costs may be allowed which accrued after actual notice in writing of the withdrawal was given by the plaintiff to the defendant or his attorney, unless good reason there for is shown to the court."
This appeal exposes an unresolved gray area of procedure between the rules of practice and the General Statutes. The right to costs must be based on some statute or authorized rule of the court. Condon v. Pomroy-Grace, 73 Conn. 607, 614, 48 A. 756 (1901); see also Bridgeport Gas Co. v. United Mine Workers, 21 Conn. Sup. 331, 154 A.2d 530 (1959). General Statutes 52-81 authorizes the taxation of costs in favor of a party against whom any civil action has been withdrawn. Indeed, the statutory language mandates the allowance of costs upon withdrawal.
Alternatively, Practice Book 412 establishes the general procedure for the taxation of costs.fn4 That procedure requires that the taxation of costs in civil cases begin with action by the court clerk. "Only after the clerk has given notice to the adverse party to be present and has proceeded to tax costs does the rule provide for appeal of that taxation to the trial court." (Footnote omitted.) Birmingham v. Kielczewski, 17 Conn. App. 219, 224, 551 A.2d 1260 (1988) (O'Connell, J., dissenting). This general procedure applies in a civil action where there is a prevailing party in whose favor a decision or verdict is rendered and judgment entered.
Lo Sacco argues that the statutory language of General Statutes 52-81, which mandates the taxation of costs upon withdrawal of an action, does not require that he follow the procedures specified in Practice Book 412. We disagree.
Notwithstanding the fact that judges and not clerks "render" judgments, to be consistent with our rules of practice the pertinent language of General Statutes 52-81 must be interpreted so as to require the party against whom an action has been withdrawn to follow the procedures of Practice Book 412. Under that provision, the clerk acts as an agent of the court. Should there be no resulting appeal, the clerk's action will become a part of the trial court's judgment in the matter.
While the clerk has no discretion to order the taxation of the costs, the amount of the costs might well be contested at a hearing before the clerk. An appeal from that decision would lie in the trial court. See Practice Book 412; Krawiec v. Kraft, 163 Conn. 445, 447-48, 311 A.2d 82 (1972); Hall v. Hall, 36 Conn. Sup. 15, 16, 409 A.2d 1250 (1979). Should the clerk refuse to tax any costs pursuant to General Statutes 52-81, "the remedy is a petition to the court to order the clerk to perform an act as required by law. State v. Crabtree, 32 Conn. Sup. 322, 323, 353 A.2d 796 (1975); Gordan v. City of New Haven, 5 Conn. Sup. 292, 293 (1937); see Shaker v. Shaker, 12 Conn. Sup. 197, 198 (1943); 2 E. Stephenson, Connecticut Civil Procedure (2d Ed.) 312e." Birmingham v. Kielczewski, supra, 223-24 n. 3.
In the present case, there does, in fact, seem to be a dispute as to the appropriate count of costs.
In the present case, the trial court did not err in refusing to allow Lo Sacco, in effect, to bypass the procedures of Practice Book 412 and create a new procedure that cannot be found in our rules of practice. The court's denial of Lo Sacco's "motion for judgment of costs upon withdrawal" created an appealable order; see Wildman v. Munger, 70 Conn. 380, 382, 39 A. 599 (1898); that has allowed this court to clarify the procedure for the taxation of costs upon the withdrawal of an action.
We conclude that our decision to confine the remedy of seeking costs upon withdrawal exclusively to the confines of Practice Book 412, (1) relieves the trial court of a duty that the clerk, as an arm of the court, provides routinely in other nonwithdrawal civil cases, and (2) keeps the administration of the taxation of all costs consistently within one office. Our decision today neither works any injustice nor imposes any unnecessary burden on any party. Rather, it is within the spirit of Practice Book 6 to allow for the liberal interpretation of our rules of practice which have been designed to "facilitate business and advance justice."
Practice Book 6 provides: "The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice."